DC Circuit Likely To Narrow Judge Chutkan Gag

Ruby Freeman was not a public figure until Donald Trump and Rudy Giuliani made her one, until they turned her into the villain of their feverish conspiracy theories about black women and voting. But early on in the appellate hearing on Judge Tanya Chutkan’s gag in the January 6 trial, Trump’s attorney John Sauer claimed there were no people covered by the gag who were not public persons.

That will become important if, as I suspect, the DC Circuit panel of Patricia Millett, Cornelia Pillard, and Bradley Garcia, upholds Judge Chutkan’s gag, but narrows it with regards to public persons. I suspect the court will throw out the gag on Trump comments about prosecutors (but not their family), limit the gag about public people like Mark Milley and Mike Pence to specifics about this trial, but adopt the gag as is for non-public people like Freeman.

Then we’ll have a fight about who counts as a public figure or not.

The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client. The judges, especially Millett, asked him a series of hypotheticals to try to get him to lay out a standard that wouldn’t fall astray of the First Amendment. And Sauer kept getting cornered saying, basically, only the clear harm standard could apply to a gag on his client’s speech. Effectively, he was saying that Trump has to be criminally charged with witness tampering rather than gagged. At one point, Sauer suggested that Trump must be permitted to wage this case in the public sphere, that there can be no consideration for the public interest in a fair trial. In another, he got awfully close to arguing that Trump should be treated as a stranger to this case, meaning no restrictions could be imposed, rather than the accused defendant. In a third, Sauer suggested that Trump must be permitted to run for election on a campaign of threats against his adversaries. Over and over, Sauer argued that Trump should be permitted to say things publicly — at campaign rallies or on his failing Social Media site — that Sauer he agreed would be prohibited under the gag order if he did it on the phone with a witness.

I doubt this will be a winning argument before the DC Circuit. But Sauer is really making a play for Clarence Thomas and Sam Alito, not Patricia Millett.

Update: Fixed reference to Sauer as Lauro.

103 replies
  1. Rugger_9 says:

    It fascinates me that the judges are trying to draw increasingly hairsplitting lines that Defendant-1 and his legal team will just storm across anyway. I get the idea is to create a precedent for the future, but until it is actually enforced with sanctions or more serious consequences there is no real precedent.

    • Bobby Gladd says:

      #NielsonMandela won’t stop until he gets his perp walk, handcuffs and all. And, neither will he stop then. He seriously thinks that he can jury-nullify the entire nation.

      • dannyboy says:

        I believe that here in NYC he is “walking the line”. He’s finished so his bs isn’t getting him anything. Judge Engoron is alowing his bs while humming to himself “la, la ,la” just to ensure there’s nothing appealable left dangling:

        “Judge Engoron refuses to even allow briefing on Trump’s mistrial motion, noting that it so lacks merit that any such briefing would be a waste of everyone’s time.” – Lisa Rubin

        Unlike bmaz, I kinda’ prefer the NYC, NYS, Georgia et all cases. He just CANNOT f with us!

        • bmaz says:

          Yes. Of course you do. You prefer any hair brained local prosecution that is not subject to federal standards as to national political candidates. Good job DannyBoy, a very boffo voice you suddenly are here.

        • dannyboy says:

          I’ll read boffo as in 1.”very successful or wholeheartedly commendatory. (‘a boffo box-office certainty’)
          2.(of a laugh) deep and unrestrained; because I am sure you wouldn’t just hurl insults like that.

          You must know that Fanni Willis’ charges have nothing to do with national politics and everything to do with financial fraud.

        • Rayne says:

          Quit poking the bear. And don’t make claims for which you have not provided any supporting documentation.

          Fulton County GA charged Trump et al with:

          Violation of the Georgia RICO Act
          Solicitation of violation of oath by public officer
          False statements and writings
          Conspiracy to commit false statements and writings
          Criminal attempt to commit false statements and writings
          Impersonating a public officer
          Conspiracy to commit impersonating a public officer
          Forgery in the first degree
          Conspiracy to commit forgery in the first degree
          Filing false documents
          Conspiracy to commit filing false documents
          Influencing witnesses
          Criminal attempt to commit influencing witnesses
          Conspiracy to commit election fraud
          Conspiracy to commit computer theft
          Conspiracy to commit computer trespass
          Conspiracy to commit computer invasion of privacy
          Conspiracy to defraud the state

          The indictment: https://www.washingtonpost.com/documents/1ccdf52e-1ba2-434c-93f8-2a7020293967.pdf

          None of the Fulton County charges are related to financial fraud and are related to interfering with Georgia’s operation of elections.

        • bmaz says:

          Here is what I know: The Fulton County indictment is the most larded up pile of shit I have ever seen in my life. But, hey, I am young. And if it had been about only local offenses, it would be short of most of the defendants and most of the pages.

        • Mike C_25OCT2023_1113h says:

          It would be short of defendants who *checks notes* plead guilty and laid out Trump’s crimes explicitly.

          Seems to be a lot of that going around. LOL

          Yeah, we know. Trump never fails – he can only be failed. I’m sure they just betrayed him and lied to get off easy. Amiright bro?

        • bmaz says:

          I am as far from your “bro” as can be imagined. You don’t know jack shit why people plead out. Pretending like you do makes you look stupid. Did you represent any of them? No?

        • Rwood0808 says:

          Why does everyone assume he’s finished?

          Not one of these cases will prevent him from running and winning the election and assuming the office of president again.

          Everyone talks about preserving the precious justice system, that same system that failed to hold him to account for decades, for after he is gone.

          The cart is before the horse here on this blog. trump has to be defeated at the box office first, and that is far from something we can just assume will happen.

        • earlofhuntingdon says:

          Confusing analogy with that cart and horse, as well as your lack of doubt about Trump’s victory. You’re also ignoring the intentional limits on the role of the criminal and civil courts.

          Dealing with Trump is largely a social and political issue, not a legal issue. No loss in court will shut him up or put him beyond the political pale. Only the political system can do that.

        • TooLoose LeTruck says:

          In total agreement w/ you on that one, Earl…

          The only real way to stop him is at the polls…

          And I suspect that even if he loses BIGLY, he’ll simply refuse to accept it and keep causing an uproar as long as he can.

        • Rwood0808 says:

          Earl, I’ve come to respect your opinions, legal and otherwise, here, but I have to disagree with you on this.

          I recognize the intentional limits of the courts, but that’s not why we have a trump problem today. I would call it a lack of will by those whose task it is to prevent criminals like him from rising to the level that trump has obtained.

          Dealing with trump SHOULD be a legal issue, and it should have happened years ago.

          It’s now common knowledge that trump, and his father before him, were lifelong criminals. Worse yet, the laundry list of crimes were committed right in front of some of the leading enforcers of the criminal justice system, and nothing was ever done. Why should people have faith in a system that failed so badly for decades?

          Today is no different. Trump committed election crimes well before the 2016 election and has only added to that list over the last seven years. Crime after crime was highlighted daily. Impeachment failed to hold him accountable. Then one day he was no longer president, but what happened then? Was there a line of prosecutors waiting for him in the tall grass with a list of indictments in their hands all polished and ready to go?


          Now here we are, almost three years post Jan 6th, and trump still has yet to see the inside of a jail cell.

          We sit here on this blog and debate the legal ins and outs of the charges he’s finally facing. It’s good conversation and lively debate, and I, myself have learned a great deal. But there’s one thing hanging over it all; none of it will prevent him from winning the presidency again. While the lawyers and journalist debate the law and the endless technicalities trump continues his psyops campaign unencumbered. The difference between the two is simple: one is about rules and laws and the other is about feelings. While we engage here in endless debate over the rule of law and put all our eggs in the justice basket, trump is out there engaging with people on a personal level and catering to their emotions. He’s winning votes while the justice system is winning nothing.

          It’s been years and his opponents still don’t realize the type of battle they are in nor do they have a plan to counter it. If they were to suddenly have an epiphany tomorrow it would still be too late.

          I fully understand the concern about the condition of the justice system after trump is gone. But the politicians running against him need to start winning some hearts and minds or there won’t be a justice system to worry about.

        • Mike C_25OCT2023_1113h says:

          Excellent point. Which is why I’m so happy that Biden is finally taking on the wealthy tax cheats by funding the IRS.

          I’m also thrilled to say that, after all the bank bailouts, close friends had their student loans forgiven.

          Unfortunately sound policy is no match for base tribalism and cruel memes. Which is also why I love “Dark Brandon”.

          [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

        • janice Collins says:

          You are correct and no one seems ready to set limits on Mr. Trump, a liar, sex abuser, thief and insurrectionist. If he wins the election through dark money, third party candidates and Russian interference they will probably come after us for this blog.

        • HorsewomaninPA says:

          The political system already did defeat him at the ballot box – in 2020 and we are back where we started from. Trump is a unique individual and there is no system he will not exploit. He is relentless. Until people in any of those systems, (legal, political or social) match him blow for blow and get out in front of him, this is what we have to deal with. He can get away with anything because he doesn’t play by the rules, he plays with them, while everyone in the political, legal and social systems play by the rules.

        • trnc2023 says:

          Regarding the people you’re referencing who want to preserve the justice system, I think it’s heavily implied that it’s the ideal they want to keep and build on, not the flaws. It’s not like we have a choice under our Constitution to create a wholly different justice system, so preserving the current system is really our only option. Replacing bad judges with good ones and/or expanding the courts with appointments by good politicians is the only way to significantly improve the courts. An actual SCOTUS code of conduct that doesn’t lead to guffaws would probably help, too.

      • Honeybee says:

        Here is a wild and crazy idea. Between Roe challenge minimizing personal privacy and this challenge trying to limit the rights of non-“public” figures, perhaps the legal tempest in a teapot seeks to excuse by precedent the quasi-official invasion of the privacy of regular folks in this country since nine eleven. Please forgive if this seems too simplistic. Living on the alternate side of the looking glass these days.

    • ChrisM_08NOV2023_1038h says:

      As Trump has already shown, if there is a gag order against him, he’ll just get someone like Elise Stefaniyak to say whatever invective he tells them to against the people he can’t talk about. He can’t help it—it’s pathological. It makes him feel like he “got one over on the judge.”

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  2. P J Evans says:

    He really shouldn’t be allowed to talk about anyone but himself in his cases. Everyone else should be off-limits, because all he does is attack them for doing their jobs/being witnesses.

    • earlofhuntingdon says:

      That is part of free speech, which is still restrained by such things as the law of defamation. (Sauer seems to argue that only the criminal law can restrain it.) That would be one reason Sauer’s arguments were so broad and conceded that nothing could legally constrain Trump’s speech. That’s not the law now, but Thomas and Alito seem to want to make it so, in their fervor to discard NYT v. Sullivan.

      In suggesting “that Trump must be permitted to run for election on a campaign of threats against his adversaries,” [a category far more inclusive than political opponents] Sauer is arguing a Fascist standard under the guise of free speech. (His argument also ignores that Trump is a criminal defendant, not an unrelated party.)

      Sauer ignores that one person’s speech might frequently conflict with someone else’s rights, a conflict that confronts every constitutional right, which is why rational balancing tests are fundamental to civil society.

      • P J Evans says:

        I’m willing to allow him free speech when it comes to politics, but courts are not the location for it, and AFAIK never have been, unless you like dealing with contempt charges.

        • earlofhuntingdon says:

          Generous of you to allow it. One thing the DC Circuit will confront here is to what extent being under criminal indictment and part of the very trial whose process he wants to upset limits Trump’s free speech and in what ways.

        • Joeff53 says:

          Concomitantly, the court needs to address whether Defendant’s status as a candidate for office entitles him to greater First Amendment protection than a run of the mill defendant facing a gag order.

      • WCSBill says:

        Yes, the party of Trump continues to believe and push that there is only one side and that side gets all of the rights to impart whatever they wish onto others. The authoritarian never concedes his sense of power. He is delusional that only himself matters in all things.

        P.S., I support a vigorous defense, but no more than any other under criminal indictment. His money and all the donors paying for the mountains of motions and tying up the court system to avoid and delay has gotten him through for past the courts for 78 years.

        [Welcome back to emptywheel. THIRD REQUEST: Please use the same username each time you comment so that community members get to know you. “WCSBill” is your fourth user name; you’ve also commented as “William_S,” “William Swain,” and now “WCSBill.” Pick a username with 8 letters minimum and stick with it. Thanks. /~Rayne]

    • HorsewomaninPA says:

      Agree. When will the people in our justice system understand that he is trying to make the justice system (and everyone in it) look inept. His lawyer, in many cases, argued ridiculous things on the premise that if he gets away with just a little bit more and then a little bit more and even a little bit more, he gets his way eventually and wears the people in the system down. His inane arguments causes everyone who reads or hears them to pause and ask themselves, “why not?” That is how he has gotten away with everything his whole life.

  3. BobBobCon says:

    One of the things I worry about is a rush by the press to lend credibility in a broad way to Trump’s claims about the First Amendment, while wildly minimizing potential risks he plays to their own First Amendment rights.

    Stephen Miller has recently called for criminal prosecution by red states of reporters, with the Missouri AG saying he is already investigating that option. We’ve just seen the conviction of the Pelosi attacker, who Trump has used as an example of someone he approves of, and it takes a huge wilfull blindness to pretend he won’t use mob violence against the press if he regains office, if not sooner. He has already pushed the neonazi lie that Jews control the NY Times.

    He’s going to turn on the press, and they’re running out of time to treat his threats to them seriously while they bend over backwards to accommodate him.

    • Rugger_9 says:

      We don’t have to speculate. There is that case in Marion KS where the chief raided the newspaper printing inconvenient truths on a bogus warrant. The DA yanked it once the bad publicity hit the media and FWIW the chief resigned under (another) cloud.

      It did happen here in the USA.

      • P J Evans says:

        That one keeps getting worse. The mayor has resigned, and it appears that the police were passing information to the person (restaurant owner, IIRC) who got the bogus warrant issued..

        • missinggeorgecarlin says:

          Oddly, my job (which is normally is projects in FL) caused me to travel to this place about 10 times last year. It’s a tiny, very rural Kansas farming community. There’s almost nothing there. I was surprised they had a newspaper.

          I ate at her restaurant because there’s almost nowhere else to eat and I was curious to see the historic hotel. Here’s some good background info: https://www.kansascity.com/news/state/kansas/article278349554.html

      • Peterr says:

        There is so much more ugly to this story. Before coming to this little town, the chief in question had been on the KC MO police force, but left under a cloud. From the KC Star:

        Cody, who was a captain in the police department’s property crimes unit, was under internal review for allegedly making insulting and sexist comments to a female officer. The day after making the comments, Cody reportedly phoned the female officer and acknowledged his behavior was unprofessional. But Cody, 54, didn’t know that the officer had secretly recorded their last conversation and later filed a hostile work environment complaint against him with police department officials.


        While still under investigation at the KCPD, Cody was reassigned to work the late, overnight shift in the Metro Patrol Division. Among police, the shift is called the “dogwatch” because it is a less desirable assignment often given to rookie officers. At the end of the internal investigation into the hostile work complaint, Cody was told that he would be demoted to sergeant. Instead of accepting the lower-ranked role, Cody left the force he worked at for just over 24 years, sources told The Star.

        That he even became the chief in Marion, after leaving KC like this, is yet another mess.

  4. Peterr says:

    The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client.


    Sauer was presenting a possible guide for the court to consider, but then dodged every damn attempt to apply his proposed rule to specific situations. Again and again, she called him out with things like “That’s not an answer to the question I asked. Could you answer the question I asked?” Honestly, I half expected Millet to threaten him with sanctions.

    • Rugger_9 says:

      I don’t know if the appellate level issues sanctions given that denying the motion is generally damaging enough. It’s not like Sauer flung poo.

      • Peterr says:

        The most likely sanction at this point would be language in the ultimate opinion says something like “When defendant’s counsel was repeatedly pressed to describe how his proposed rule would apply to various hypothetical situations, he was unable or unwilling to give a coherent and responsive answer. We therefore find his ‘argument’ unpersuasive.”

  5. DumbledoreMV says:

    First time posting. Long time Lurking

    IANAL – can the judge issue a gag order which says everything defendant-1 says, related to this matter, must be 100% accurate as defined by some standard (“perjury standard’ if that is such a thing) or lying (1001) IE the Judge hates me, he is a 10 out 10, but his family is a 15. OK, Fine, prove it.

  6. SteveBev says:

    I apologise if I have this wrong, but I got the impression from reading live tweets of the hearing that although Lauro was present, it was Sauer who presented all the oral argument for Trump (cf para 1 – ? typo)

      • Peterr says:


        But he’s got the right pedigree for the right wing: clerked for Luttig and then Scalia, and later appointed MO Solicitor General by Missouri’s AG at the time, Josh Hawley.

        • Peterr says:

          Jack Danforth has much to repent of when it comes to promoting legal wingnuts, with Clarence Thomas and Josh Hawley at the top of the list.

        • Alan Charbonneau says:

          Occasionally, that background still results in a fair judge. John E. Jones III, the judge in the Kitzmiller v. Dover trial and the one who ruled that Pennsylvania’s 1996 ban on same-sex marriage was unconstitutional, was appointed by G.W. Bush and was recommended for US District Court for the Middle District of Pennsylvania by Rick Santorum.

          I read about 3/4 of his opinion in the Kitzmiller case and, though I am not a legal scholar, I thought it was great.

        • Joeff53 says:

          Before retiring I followed the federal appellate bench quite closely. Until he decamped for greener pastures at GE, JML was a perennial shortlister for SCOTUS during GOP presidencies.

          ping for

        • SteveBev says:

          And as Solicitor General signed the “Motion of States of Missouri, Arkansas, Louisiana, Mississippi, South Carolina, And Utah To Intervene And Proposed Bill of Complaint In Intervention” in an attempt to overturn the 2020 United States presidential election.

    • emptywheel says:

      It was a typo. Just saw it this morning. Thanks.

      Having a hard time keeping these blustery white male lawyers named John making specious claims on behalf of Trump straight, is my excuse and I’m sticking to it.

      • SteveBev says:

        No problem, glad to be of help
        It is difficult to keep track of the revolving cast of Trump lawyers and acolytes – and you do a great job of doing so.

        I must confess I had initially got Sauer and Sadow confused in my mind.

        O/t re Sadow: he has apparently submitted a motion to McAfee asking that McAfee ‘arrange’ for the disclosure of the SC discovery/disclosure in the DC case to be provided to the defendants in the Georgia proceedings.

        Sounds batshit to me. But Trumplawyers gotta Trumplaw I guess.

        • ExRacerX says:

          John Bigboote: We’ve had our chance! Your Overthruster’s for shit! We’re lost!
          Lord John Whorfin: One more word out of you, Bigbooty…
          John Bigboote: [screaming] BIG-BOO-TAY! TAY! TAY!
          [Whorfin shoots him]

        • John Paul Jones says:

          Shouldn’t that be John Bigbooté? With the accent? One of my all-time favourite movies with a main character who is both a brain surgeon and a rocket scientist (sort of); what’s not to love? “History is a-made at night. Character is what you are in the dark.”

  7. montysep says:

    This Court seems to be handcuffed in the face of Trumps’ use of coded language, vagueness and deniability. One line of questioning suggested that Trumps Milley tweet saying in the past offenders were executed could possibly stand on it’s own.

    Don’t know how long the audio will remain up at YouTube but the entire hearing is there now at:

    It is superior to the Twitter live coverage because the questioning moved so fast and was complicated. One reporter tweeting noted the Trump lawyer spoke fast like the legal disclaimer on the end of an advertisement.On the other hand many summaries like the one above capture the proceedings well. The professionalism nuance and tone are practically must hear though. Things like Pillard(?) asking “what additional points would my hypothetical question need” to give it the context Sauer said it lacked.

    • gruntfuttock says:

      ‘[T]he Trump lawyer spoke fast like the legal disclaimer on the end of an advertisement.’

      Trying a Gish gallop?

      I started listening to the recording and Sauer sounds rather like ‘Nice Guy’ Eddie from Reservoir Dogs, which is a bit weird, but thanks for the link.

  8. punaise says:

    OT tangent: the pretty good current French film Anatomy of a Fall (which has a lot of dialog in English) is in large part a courtroom drama. Boy howdy – based on my narrow recent experience as a juror – are procedures and different over there! . I’m sure they took some dramatic shortcuts, but it includes a lot of banter between opposing counsel, no apparent jury box, wild conjecture without objections and admonitions, etc. Side note: most non-robed participants including the defendant and witnesses were rather casually dressed.

    • Just Some Guy says:

      I read a recent review of that film that didn’t seem to understand that the courtroom banter wasn’t a conceit by the director, which certainly diminished my interest in reading further reviews by said critic.

      • punaise says:

        Fortunately the handful of years I lived in France included no courtroom attendance or participation in any function, so I have no direct experience to draw upon.

        Are you referring to Anthony Lane’s favorable New Yorker review calling it “a magnificent slippery thriller” while saying that fans of legal shows will be “taken back by the free-form nature of the proceedings”?

        The following week in the same magazine Richard Brody labeled it “prestige cinema as airport novel … with … prefabricated attitudes and moral incuriosity”.

    • earlofhuntingdon says:

      The different procedures you noticed in that drama might be owing to France having a fundamentally different legal system than the US, UK, and other common law countries. It is the source of the Civil Code system that applies in most continental European countries and their former colonies. (Traditionally, the other two major world legal systems are Communist and Islamic law legal systems.)

      Its rules are based on the Napoleonic Code, with different courts, rules and procedures for civil and criminal cases, as is partially true in the US, and another set of courts for cases involving state agencies as litigants.

      For all intents and purposes, for example, juries are not part of the French criminal justice system. The usual shorthand is that the French system contemplates a judge-based, inquisitorial system, as opposed to the party-based adversarial process.

        • earlofhuntingdon says:

          Yes, it is a civil code system, owing to having been a French, then Spanish, and then French colony up until the Napoleonic era. Some of its substantive laws and procedures reflect their Napoleonic Code origins, family and contract law, for example. But over the past two hundred years, a good portion of its laws and rules, especially its criminal law, now have more in common with the common law systems in the other American states.

          The French and other European civil code systems were themselves based on surviving notions of Roman law, notably the Code of Justinian. The principal differences between common law and civil code systems follows from their different sources of law and the philosophy behind them.

          The common law was originally a collection of judge made legal precedents, the civil code a body of laws “codified” into a set of texts, to be interpreted by the judge, rather than fought out primarily between plaintiff/prosecution and the defense. The US has since codified many of its law, such as the Uniform Commercial Code.

        • P’villain says:

          I spent my first summer of law school briefing cases from numerous state courts for a professor who was a Reporter for the Second Restatement of Property. At least when it came to estates in property, there was Louisiana and then there was everyone else.

      • Ewan Woodsend says:

        No jurors…except for the most serious crimes. A striking difference is that the defendant isn’t liable for perjury: lying is a perfectly acceptable defense strategy. A defendant may confess his/her crime to his lawyer, and his/her lawyer may advise/help devise a plausible fiction to tell the judges (always three judges). It can backfire, naturally. But that makes the overall dynamic very different. To see it in action, Delits flagrants is a documentary on what happens when people are caught in the act and quasi immediately trialed (not the major crimes requiring a jury).

        • gnokgnoh says:

          I rarely comment but feel compelled to clarify. Lower level offenses (contraventions et delits), equivalent to traffic and misdemeanor cases, are typically assigned to one judge in France. Two judges may be assigned if there is a concern about the trial judge becoming absent. Crimes (equivalent to felonies) are tried by three judge panels. Also, the oath taken by all French lawyers is the following, “I swear, as a lawyer, to perform my duties with dignity, conscience, independence, integrity, and humanity”. Defendants are not under oath in French law, so not subject to perjury.

      • IdaLewis says:

        This is most helpful. As a fan of the series “Spiral”, about a French cop who works closely with the “proc” — the prosecutor — I’ve found observing the French system mystifying. The prosecutor does a lot of detecting. It’s a great series, highly recommend.

  9. WilliamOckham says:

    I listened to most of Sauer’s schtick and all of the government’s argument. The biggest disappointment to me was the feebleness of the government’s response to the openly fascistic appeal that Sauer et.al. are making. We all need to understand that the core of the coordinated approach that Trump is taking in his legal and political arguments is pretty damn simple: Nothing can constrain Trump from normalizing the use of political violence against his opponents.

    I just don’t get how the government shows up this morning and never mentions David DePape, Cesar Sayoc, Stewart Rhodes, Ricky Shiffer, or any of the other of the dozens of self-proclaimed Trump followers who acted violently on Trump’s behalf.

    Trump is a defendant charged with inspiring a violent mob. His legal position is that he’s going to do it again and no one can stop him. And he’s probably going to get away with it. As Dr. Wheeler predicts, the likely outcome here is a decision that literally enshrines the right of Donald Trump and any other fascist politician, to direct his followers to commit political violence against any public figure who opposes him. I don’t see that as good outcome.

    • earlofhuntingdon says:

      I’m beginning to think that the DoJ is afraid to use the “F” word, Fascist and fascistic being outside their perception of the Overton window, such that it might taint their legal arguments. Your very short list of names of the convicted felons would have been a good way to get around that. They better start looking for others.

      If Trump wins in 2024, they will sure as shit be arguing the same things Sauer did today – or farther to the right and on a much broader range of civil and criminal issues.

      • bmaz says:

        DOJ should be. The blithe incantation of that word means nothing. Speak to the law, not larded up buzzwords.

        • WilliamOckham says:

          My point is not that the government should use the f word. My point is that they should speak to the facts as well as the law. The facts about Donald Trump are well-known. He espouses an ideology of violence. He and his followers revel in it. His followers have physically attacked his political opponents on multiple occasions. He doesn’t disavow the violence, he praises it.

          As you well know, the judicial system assesses a criminal defendant’s background to make all sorts of decisions from bail to pretrial detention. I’m advocating for the idea that the federal prosecutors are doing a poor job by failing to call attention to this particular defendant’s background.

      • earlofhuntingdon says:

        No, the DoJ should not use jargon or buzzwords in place of factual and legal arguments. But if they have it, characterizing their argument in plain words is an important job.

        • David F. Snyder says:

          Generally speaking:
          The necessary is possible.
          The optional is expensive.
          The arbitrary is unlikely.
          DoJ can plainly characterize the defendant’s arguments without the expensive use of the charged, abstract, and complex word ‘fascism’. In fact, they did.

    • P’villain says:

      I still view a thoughtful appellate decision, surgically adjusting but upholding Chutkan’s order, is the best outcome possible here, and I believe that’s what we’ll see. I also believe that in that scenario, there won’t be four votes to accept cert or five votes to grant emergency relief at the Supreme Court. Then, it will be up to Chutkan to exercise sound and stern discretion in how she enforces it.

    • emptywheel says:

      Or at least Taranto, who was briefed but not mentioned AFAIK, not even during discussions of giving out addresses to people. It is the clearest case where someone responded to a Trump impetus, handing out the address of Obama, and took action.

  10. David F. Snyder says:

    That is one sour Sauer argument put forth. If it were true, every defendant in criminal court should attempt to qualify to run for some office, any office, and attack any public figures they care to. Or am I understanding the argument incorrectly?

    • Ginevra diBenci says:

      David Snyder, you landed on my central issue with this argument. Trump *chose* to announce his campaign (two years ahead of the election), in significant part to pre-empt or nullify the legal problems he knew were coming. Predictably, he/his lawyers are now treating his 2024 campaign as if it were something that happened to him–like cancer or a hurricane–and thus must be fulsomely accommodated.

      Your point is just what I’ve been thinking. Many elected offices require little in terms of qualifications; the internet makes finding one to “campaign for” easy. Trump thinks only of himself, but plenty watching him take careful note–and cues–from his strategery.

  11. Old Rapier says:

    A finding across the board for Trump here and it would then amount to malpractice if lawyers for any possible soon to be indicted client, not to advise them to announce their run for president.
    By the way, vote for me in 36 and thank you for your support.

  12. Ravenonthill says:

    Alito and Thomas will rule the way their patrons tell them. Legal arguments will not sway them if they are given marching orders. It’s the other justices who might be persuaded.

    As you say, the most likely outcome is that Trump will be allowed to continue at least part of his campaign of stochastic terrorism against judicial officials and witnesses. When someone is assaulted or murdered, we will be told that, as with widespread firearms ownership, this is the price of freedom.

    I’m exceptionally bloody minded tonight. There’s a lot of horrible news. But I don’t think I’m wrong in what I just wrote here.

    [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 is your third username; your first 14 comments were published as “The Raven,” the most recent 4 comments as “Raven Onthill.” You’ve omitted a space and changed capitalization in the username on this comment, “Ravenonthill.” Spaces and letter case matter. Please pick one username and stick with it consistently or risk having your comments stuck permanently in moderation. /~Rayne]

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