DOJ Accuses Donald Trump of Asking for Special Treatment Even His Seditionists Didn’t Get

You’ve no doubt heard about the spat over whether Donald Trump’s DC trial should be televised (which court rules pretty much prohibit). Judge Chutkan allowed the parties to weigh in a media request to film the trial.

DOJ, after claiming to consult with Trump, filed an 18-page opposition, citing case law, but focusing especially on witness intimidation.

Paired with the ever-increasing acrimony in public discourse, witnesses and others who appear on video may be subjected to threats and harassment. Were there an appeal and retrial, witnesses who were subjected to scrutiny and harassment on social media may be unwilling to testify again. Even the knowledge that their images will circulate on social media may temper a witness’s initial testimony.

Trump responded, demanding a televised trial, with one of the most bombastic filings he has submitted.

After obtaining permission, DOJ replied, again focusing on witness tampering. It notes that he’s asking for special treatment.

Instead, decrying the alleged unfairness of the unequivocal and constitutionally-sound broadcast prohibition that has governed federal criminal trials—no matter the defendant—for decades, the defendant’s response is a transparent effort to demand special treatment, try his case in the courtroom of public opinion, and turn his trial into a media event.

But they also situated Trump among similar defendants — noting, for example, that fraud defendants like to continue their con inside the courtroom.

He desires instead to create a carnival atmosphere from which he hopes to profit by distracting, like many fraud defendants try to do, from the charges against him.

More interesting still are the high profile trials to which DOJ likens this one: All those of terrorists.

Indeed, the defendant ignores that high-profile federal criminal trials have long proceeded in accordance with the broadcast prohibition under the rules—and that they have garnered significant and detailed media coverage of courtroom proceedings nonetheless. See United States v. Tsarnaev, 595 U.S. 302, 313 (2022); United States v. Moussaoui, 205 F.R.D. 183, 184 (E.D. Va. 2002); United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996). This has remained true in the context of trials related to the January 6, 2021 attack on the United States Capitol, including on seditious conspiracy charges. See, e.g., United States v. Rhodes, 610 F. Supp. 3d 29 (D.D.C. 2022); United States v. Nordean, 579 F. Supp. 3d 28 (D.D.C. 2021). The comprehensive, often minuteby-minute, public reporting on courtroom hearings in this case provides further evidence that the defendant’s desired “sunlight” need not come from eschewing the rules.

To be sure, Tsarnaev, Moussaoui, and McVeigh are direct precedents on access to the courtroom, as are those of Stewart Rhodes and Trump’s own Proud Boys.

But DOJ could have addressed the high profile trials of Roger Stone or Scooter Libby — the criminals Trump already pardoned, rather than the seditionists he promised to in a second term.

Fraudsters and seditionists. Those are Trump’s peers.

58 replies
  1. Rugger_9 says:

    The defense lawyers have to be well aware that Defendant-1 is his own worst witness especially after the events last week in NYC. I also would expect that even with cameras Judge Chutkan will maintain a professional courtroom. This is a bluff by the defense to waste more pretrial time since they really don’t want Defendant-1 to be cross examined, and I doubt Judge Chutkan will fall for it. Nor would I expect 11CA or SCOTUS to permit them either but I do look forward to Alito re-defining what ‘public trial’ means.

    However, there are really no good reasons to change the rules here. All that will come from it is incitement of the MAGA cultists and the potential doxxing of jurors. For the latter item I would also address the USSS detail since many of them have demonstrated their sympathy to the cause.

    • SteveBev says:

      As you have probably already read, but it is worth emphasising, the DOJ at p3 (and note 2) of the reply explicitly referred to Trump’s performance on the stand in NY, as part of the argument that many people accused of fraud try to turn the trial into a circus, “which is not hypothetical” with respect to Trump.

    • DrFunguy says:

      It’s not about the trial, per se, it’s about using it to campaign for re-election.
      He may be his own worst witness, but he’s his own best propagandist. Why he’s so successful at conning people is a mystery, but clearly true.

      • dannyboy says:

        He is very good at conning people because, like all conmen, he holds out the promise that they’ll get what they really want. They never do.

        But in this case, he has offerred immunity in their display of racism, homophobia, and mysogyny.

        The next is to offer immunity for the violence that he will direct on their behalf and allow them to participate in.

        I know this because I am a Jew.

  2. 2Cats2Furious says:

    I think that asking for briefing from the parties on this issue was a rare mis-step by Judge Chutkan. The federal rules prohibiting audio and video recording of federal trials are quite clear. Whether or not you agree with the rules, I don’t see how Judge Chutkan is in a position to change them.

    Asking for responses to the media requests just gave Trump the opportunity to claim that HE wants the trial televised – even though I can’t imagine him actually testifying – while also claiming the DOJ wants to conduct the proceedings in secret (even though they won’t be). He gets to control the narrative… again.

    • bmaz says:

      Well, if you were familiar with the 9th Circuit and CAND, you might understand how your statement is not exactly correct.

      • David Brooks says:

        I assume from your comment’s reserved nature that it was an understandable misunderstanding, but can you elaborate? I think this community could handle a technical explanation.

        • bmaz says:

          Because we allow, especially in CAND, selective audio/video coverage of proceedings. Something this blog significantly helped fight for.

      • 2Cats2Furious says:

        I’m familiar with the federal rules. I practiced in federal courts throughout Texas, in Louisiana, and before the 5th Circuit, where they follow the federal rules barring recordings. Personally, I would appreciate more transparency for the public, but I haven’t seen any authority that would allow Judge Chutkan to deviate from the rules.

        If there is a 9th Circuit case allowing for selective recordings, Trump’s attorneys certainly didn’t cite it. And neither did you, which would have been nice.

        Regardless, Judge Chutkan isn’t presiding in the 9th Circuit, as you well know. And the point of my post was that by asking the parties to respond to the media requests, Trump got to file his whiny little brief about how mean the government is being to him, which doesn’t advance the issue one bit.

        [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. This was published under username “2Cars2Furious” which was corrected this once. Future comments may not clear moderation if you do not use your established username. /~Rayne]

        • dopefish says:

          Team Trump would have made that argument outside of court anyway. I don’t see how Chutkan inviting him to make it in a filing will make much difference to the public narrative.

          Its not as if Trump’s target audience is going to read any actual court filings; they’ll hear some wild spin from the RWM hype-machine and believe it 110%.

    • brucefan says:

      The judge will create a rock-solid record that the request for televising the trial must be denied, shutting down another appeal point.

      “Controlling the narrative” is not her approach. Appeal points matter, not PR points.

      She gave Trump every chance to make a good argument on this point and he failed.

      Somewhat like Trump had 60+ cases to prove election fraud and he failed, etc., etc.

        • brucefan says:

          Trump’s response says (to me) the judge is on solid ground denying the request.

          All the $ they have for lawyers and that’s the best they could come up with?

        • brucefan says:

          To put a little meat on the bone: Trump’s arguments are that the rule should be changed, NOT that the existing rule allows the relief he seeks.

  3. Pterosonus says:

    Trump’s motion is not only bombastic but also ridiculous, whiny and full of exaggerated claims of victimhood. Just one example – just because a trial is not televised does not mean it is held “behind closed doors”, “in secret” or “in darkness”. This motion is 100% pure legal drivel.

    • Ginevra diBenci says:

      Plus they misspelled the last word. Everyone knows it’s “rigged and STOLLEN,” not “rigged and stolen”!

        • Ginevra diBenci says:

          Rayne, that picture brings back sensory waves from my Midwestern past. We had stollen every year. I never see it out here on the east coast…

          Thanks to you I’m now hungry for a thick slice. Slathered with butter.

          • Rayne says:

            Been thinking about having a “stollen election” here for the holidays — community members baking their own version of stollen on which we vote for presentation.

            One of my dad’s quirks has been making sweet breads with candied fruit in them, which isn’t exactly part of his AAPI heritage. I think his best recipe was based on a Portuguese sweet bread but loaded with dried pineapple and mango chunks. So good.

              • Rayne says:

                But a panforte election won’t have the additional fillip of muddying the orange hellbeast’s continuing insistence on a stolen election.

                I’m pretty sure I’m going to post a call for fruited breads under the headline Stollen Election, so plan on some panforte ahead.

  4. Chris Bellomy says:

    A related question that popped up in my head this morning: What happens, criminally, if Trump gets his way and one of his lunatic followers assassinates Smith? Do these multiple filings warning of possible violence became evidence in new charges against Trump?

      • Chris Bellomy says:

        It’s morbid, I admit. But if there is anything that *might* slow Trump down with his incitement, the risk of being an accessory to murder seems like a candidate. It’s not as though he doesn’t know what he’s doing.

    • earlofhuntingdon says:

      Roy Cohn apparently arranged Barry’s initial appointment by Ronald Reagan to a district court judgeship. She had about nine years’ experience as an AUSA, a little thin. But it’s the sort of seeding of acolytes, and paying and repaying of favors, that Cohn excelled at. Ten years or so later, Bill Clinton inexplicably appointed her to a Circuit Court seat.

    • P J Evans says:

      He’s giving her two weeks of lying in state in the Trump Tower lobby, which is a bit excessive. And he wants everything delayed for two weeks because of that, when it’s well known that they weren’t at all close.

    • dannyboy says:

      Fred Trump Jr was so hounded and humiliated by his father and brother Donald together that he repeatedly crashed his car (I don’t know if this was intentional or the product of his drinking). I was told this by the garageman here in NYC.

  5. earlofhuntingdon says:

    Trump’s motion to broadcast his Jan. 6th is the work of a hack. As usual, case citations are mined as sources for quotes, but not legal issues. He cites textbooks and law review articles, which are not binding or persuasive. As the DoJ points out, that might be because there are no cases that support his position, which would violate an express rule of federal criminal procedure. Fortunately, Chutkan is not Cannon.

    • SteveBev says:

      “And he may elect to craft court filings with the goal of gathering media coverage rather than lawful relief from the court, as he appears to have done on this and many other occasions”
      Government reply foot of p2

    • WilliamOckham says:

      The last case citation in that brief (Estes v. State of Tex.) is my favorite. To support his nonsensical argument that cameras in the courtroom are necessary for Trump to get a fair trail, he cites a case overturning a conviction because there were cameras in the courtroom.

      And Estes is Billy Sol Estes, one of my favorite politically-connected grifters.

      • Harry Eagar says:

        Hmmm. Perhaps the thing was written with the help of ChatBot?

        I am old enough to remember Billy Sol. Speaking of trump trial-adjacent trivia, I have been idly wondering who E. Barrett Prettyman (whose name is on the courthouse) was.

        He turns up in Ellen Schrecker’s “Many Are the Crimes” (a history of McCarthyism) as author of one of the worst decisions ever: It said that when a gummint employee is suspected of disloyalty or of being a security risk, he is entitled to a hearing, but not to a fair one.

        And here we are fighting over whether it is possible (or, perhaps, desirable) to hold a fair trial in Prettyman’s court.

        I love history.

        • Ginevra diBenci says:

          It sounds to me like it was written with the “help” of Donald Trump. The opposite of AI, even though it masquerades as a Blanche & Lauro Joint.

    • 2Cats2Furious says:

      Trump’s response sounds like his lawyers strung together a couple of his “Truth” social media posts, cleaned up the language a little bit, and added some inapposite citations.

      In other words, 100% hot garbage.

  6. FL Resister says:

    I have been in favor of televising the Trump trials for a few reasons, not all completely rational, so I would have to defer to Jack Smith’s opinion because he always deploys the finest reasoning in all of his court filings, even if I don’t agree with this one.

    Timothy McVeigh’s hearings were during a different media age. We are accustomed to everything being live-streamed, with the exception of the Supreme Court, federal cases, and evidently the NY civil trial, among other proceedings. If we have C-span filming Congress, then in the cases of The United States versus Donald Trump, the public who are his victims should get to see him on trial.

    My more fanciful reason is because televising the Trump trials fits the old allegories involving three wishes or selling one’s soul to the devil. Trump’s bargain involves TV ratings. While he would try to stage his carnival inside the court, Jack Smith’s team will put on a first-class prosecution, and witnessing this contrast may do the US more good than harm. I like the idea of a throughly professional public proceeding showing how wrong Trump is about all of it.

    • Cheez Whiz says:

      The best argument against cameras in the courtroom is that Trump wants it. It serves his twin goals of being portrayed as a martyr for MAGA and spreading chaos, hoping for the judge or prosecution to take his bait to fuel an appeal. I think that outweighs any educational value for undecided voters.

      • Nessnessess says:

        Would it possible to compromise, and have the trial recorded just as it would be televised, with the recording to be released only after a verdict or the proceedings otherwise end?

      • SteveBev says:

        Trump wanted to create the •appearance• of wanting the trial to be broadcast.

        For reasons best known to themselves his lawyers initially took no position on the question, but a week later changed their minds, albeit without alerting anyone to those facts.

        The conduct and arguments reek of bad faith on this issue as with everything else.

        They want the drama, antagonism and to rant false claims of victim hood.

        My WAG:
        Trump is never going to take the stand. The last thing he wants is the world to see him sitting through a trial glowering impotently and petulantly while the evidence stacks up against him. And his lawyers screaming and shouting making idiots of themselves for the world to see would do him and them no favours.

        The only way that broadcasting would work for him is through repackaged snippets and bogus analysis on Fox and OAN etc.

        And that would be a rearguard action IMHO, but nevertheless ‘inspiring’ to the crazies which is the real danger in all of this.

  7. Molly Pitcher says:

    According to Politico: “Ukraine charges Rudy Giuliani’s top local ally with Moscow-linked treason”

    “Ukraine’s security service says MP was undermining Kyiv-Washington relations under Russian military intelligence orders.KYIV — A Ukrainian MP who in 2019 helped former U.S. President Donald Trump’s lawyer Rudy Giuliani in his search for dirt on Joe and Hunter Biden has been charged with treason.

    Oleksandr Dubinsky, together with ex-Ukrainian lawmaker Andriy Derkach and ex-prosecutor Kostyantyn Kulyk, had joined an organization formed by chiefs of Russia’s Military Intelligence (GRU), Ukraine’s Security Service (SBU) said in a statement on Monday.”

  8. RipNoLonger says:

    Sure, let’s capture the video but not the audio. That would be rather entertaining watching the gesticulations, pouting, skin flushing, neck wattles fluttering. Perhaps creative musicians could add some theatrical tunes.

    • dopefish says:

      I think audio of the trial should at least be recorded, and stored in a vault somewhere for a few decades. Someday it would be a valuable thing for historians and others to look back on.

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