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.

As I noted, right after Judge Aileen Cannon suggested, during a hearing on November 1, that conflicting trial schedules in DC and Florida meant she’d likely delay the stolen documents trial scheduled for May 20, Trump’s lawyers in DC filed to stay their DC trial. DOJ notified Judge Cannon right away that Trump had done that — basically proving the contention they made in the hearing that Trump was just stalling.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Judge Cannon hates to be embarrassed and probably was particularly perturbed that DOJ suggested she was allowing herself to be manipulated. She filed an order basically telling them never to do that again.

The parties are hereby reminded of the requirements of Local Rule 7.8 on Notices of Supplemental Authority. Except as authorized by Court order, the substantive content of any such notice (or response) may not exceed 200 words and may not be used as a surreply absent leave of Court. Future non-compliant notices or unauthorized filings will be stricken without further notice. Signed by Judge Aileen M. Cannon on 11/3/2023.

But it worked, at least for now. Judge Cannon has issued an order revising pretrial deadlines, some of which (such as a December response to a government motion already filed) don’t make sense at all. But she has not delayed the May 20 trial date and won’t consider it until March 1, at which point it will be clear whether the DC case will go forward that month.

Following review, it is ORDERED AND ADJUDGED as follows. Defendants’ Motions to Continue Pre-Trial Deadlines are GRANTED IN PART for the reasons stated below. Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

This increases the chances that at least one of these trials will go foward before the election.

A number of you have noted that dumbass James Comer has subpoenaed Hunter Biden and others (but asked only for voluntary testimony from Tony Bobulinski). And Trump has filed his appeal of Judge Tanya Chutkan’s gag order.

I’ll get to both of those.

For now, I’m more interested in the details of Ryan Nichols’ plea. Nichols is a former Marine who drove from Texas to DC, with four guns in his truck, with a buddy. He carried a crowbar to the Capitol. As he was marching to the Capitol from the Ellipse, he heard about Trump’s tweet targeting Mike Pence. In response, he gave a long, recorded speech responding to Trump’s news that Pence was not going to overturn the election by promising to drag politicians in the streets.

I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.

Later, at the Capitol, he pepper sprayed cops guarding the Tunnel, then called others to take up weapons. “If you have a weapon, you need to get your weapon,” chanting, “Pedo Pence.”

At the end of the day, he again recorded himself, explaining how the mob had listened to Trump, learned Pence “did the wrong thing, and so they stopped the vote.”

I watched patriots gather and on the way down Pennsylvania Avenue after we listened to President Trump speak, we heard that Pence did the wrong thing. And as we got [sic] the Capitol building the consensus across the board was the same, that if Pence did the wrong thing and sold us out, then we have to fight.

[snip]

They showed where Pennsylvania said yesterday, “hey, we screwed up. We want to change this,” but Pence did the wrong thing and allowed them to continue with the vote. So we stormed the Capitol building, and they stopped the vote. And went down in to the tunnels and hid, like the fucking cowards they are.

Instead of coming out there and addressing “we the people,” they ran. Because they knew they were doing the wrong thing. So we clashed with Capitol Police.

After engaging in the most committed kind of conspiracy theorizing about the January 6 investigation for years, Nichols pled guilty the other to assault and obstruction.

His guidelines sentence is 78 to 97 months.

Congressman Clay Higgins, who is nothing short of batshit, wrote a letter calling on Judge Lamberth to sentence Nichols to time served, less than two years, rather than the guidelines upwards of 6.5 years.

Because Nichols recorded much of what he did with a GoPro and/or on his phone, this is precisely the kind of evidence that prosecutors may use to show how Trump mobilized a mob against Congress, and Mike Pence in particular, to obstruct the vote certification on January 6.

As I noted the other day, Jack Smith has promised to prove Trump’s role in mobilizing the mob — both those who attacked cops and those who threatened to attack Mike Pence — at trial.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

Already, DOJ has collected evidence to show that rioters who engaged in some of the most consequential actions on January 6 were directly responding to Trump’s incitement. The guys who first breached the Senate chamber and helped open a second major breach at the East door, for example, took GoPro video of themselves specifically looking for Pence. The guy who almost murdered Michael Fanone was caught on camera responding to Trump’s incitement by promising to slit Joe Biden’s throat. His buddy, who helped Ryan Nichols incite the crowd, also tied storming Congress to targeting Mike Pence.

“Pence did the wrong thing … So we stormed the Capitol, and they stopped the vote,” Nichols explained his actions that day.

These kinds of statements, mobsters explaining how they responded to Trump’s statements by taking violent action to stop the voter certification, happened over and over.

That’s what Trump wants to keep out of his trial.

In three different ways in their responses to Trump’s motions to dismiss submitted yesterday, Jack Smith’s prosecutors emphasized that Trump should be subject to the same standards — and legal precedents — as the mob he sicced on the Capitol.

One pertains to the appellate precedents already set in the application of 18 USC 1512(c)(2). DOJ cited both January 6 precedents — Fischer and Robertson — to lay out that interrupting the vote certification to secure the presidency for oneself would be evidence of corrupt intent.

The alternatives include “using independently unlawful, felonious means,” id. at *9, and acting with a “corrupt purpose,” id. at *11, which includes acting “with an intent to procure an unlawful benefit,” Fischer, 64 F.4th at 352 (Walker, J., concurring) (quotation marks omitted), such as “secur[ing] . . . the presidency,” and acting dishonestly, Arthur Andersen LLP v. United States, 544 U.S. 696, 706- 07 (2005); see Robertson, 2023 WL 6932346, at *12 (noting that “dishonesty” or “seeking a benefit for oneself or another” is not necessary but “may be sufficient to prove corrupt intent”).

Then, in response to Trump’s claim of selective prosecution (based off two stories — the famous Carol Leonnig one and a much earlier NYT one, both by journalists who did little other coverage of the larger January 6 investigation) — DOJ pointed to all the other similarly situated Jan6ers who not only were prosecuted, but whose claims of selective prosecution or prosecution for speech failed.

The passage cited to:

• Carl Nichols’ opinion that Garret Miller’s role in interrupting the peaceful transfer of power distinguished him from Portland rioters.
• Trevor McFadden’s opinion that, because January 6 posed a greater threat than the Portland riots, David Judd could not argue he was being prosecuted more severely than they had been for setting off a firecracker in The Tunnel.
• James Boasberg’s opinion that judge’s son Aaron Mostofsky, was not being prosecuted because he wore animal pelts to January 6, but because he obstructed the vote certification.
• John Bates’ opinion that the threat to government officials and employees, as well as the objective of obstructing the vote certification, could warrant harsher charges against retired Air Force Lieutenant Colonel Larry Brock, who brought zip ties onto the floor of the Senate.
• John Bates’ opinion that Zeeker Bozell, was not being prosecuted for his political views but for “the destructive acts he allegedly took to disrupt the January 6 Certification.”
• Royce Lamberth’s findings of fact that it didn’t matter that, even if Alan. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.”
• Amy Berman Jackson’s opinion dismissing Danny Rodriguez’ claim that he was being prosecuted for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” noting that it was his criminal conduct, including tasing Michael Fanone.
• Amit Mehta’s argument that Stewart Rhodes and his co-conspirators were charged of more in their seditious conspiracy indictment than simply calling on Trump to invoke the Insurrection Act.

This list includes four GOP appointed judges, including his two Trumpiest appointments (one a former Clarence Thomas clerk), it includes the scion of a prominent Republican family and several people who invaded the Senate, it includes two of the defendants whose actions prosecutors showed were the most directly tied to Trump’s speech. And it includes an Oath Keeper convicted of sedition.

That section describing January 6 defendants whose First Amendment claims have already failed included a cross-citation to DOJ’s response on the motion to strike. Over the course of that filing, DOJ provided still more precedents from Trump’s mob, about the collective action of the mob, that they argue should apply to him too:

• Beryl Howell’s opinion that Patrick Stedman could not exclude evidence regarding the rest of the mob because,

“The sheer numbers of individuals making up the mob that marched on the U.S. Capitol on January 6, 2021—without stopping at the fencing or the barricades or the police lines or the chemical spray and other crowd control tools deployed by law enforcement—had the effect of overwhelming law enforcement officers attempting to secure the Capitol, with the direct consequence of creating a catastrophic security risk requiring the evacuation of lawmakers, staff, and press representatives legitimately gathered inside the Capitol building that day to conduct, facilitate, and observe the certification of the Electoral College vote count and triggering a lengthy delay before this constitutionally-mandated proceeding could resume.”

• James Boasberg’s opinion that Sara Carpenter could not exclude evidence of the effect on the vote certification because, “the weighty probative value of evidence that broadly depicts what happened on January 6 outweighs any potential prejudice or cumulativeness.”
• James Boasberg’s opinion, again finding that such general evidence can come in to prove what Bradley Bennett obstructed.
• Colleen Kollar-Kotelly’s opinion that evidence about context could come in at Danean MacAndrew’s trial because “the size of the crowd, political leaders, and false allegations of voter fraud and election interference” … “bear on Defendant’s mental state at the time of the charged offenses.”
• Colleen Kollar-Kotelly’s opinion repeating her MacAndrew ruling that the government could present evidence of the collective action of the mob in Anthony Alfred Griffith’s trial.

The response to Trump’s motion to strike did more: It hung Trump’s mob on him. It called Trump out for disavowing his mob in an attempt to wipe away a critical part of the indictment.

[P]ublicly, the defendant has promoted and extolled the events of that day. While the violent attack was ongoing, the defendant told rioters that they were “very special” and that “we love you.” In the years since, he has championed rioters as “great patriots” and proclaimed January 6 “a beautiful day.” In this case, though, the defendant seeks to distance himself, moving to strike allegations in the indictment related to “the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. The Court should recognize the defendant’s motion for what it is: a meritless effort to evade the indictment’s clear allegations that the defendant is responsible for the events at the Capitol on January 6.

It debunked Trump’s claim that he is not charged with being responsible for January 6.

The defendant’s motion is premised on the disingenuous claim that he is not charged with “responsibility for the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. But the indictment clearly alleges, and the Government will prove at trial, that the defendant bears such responsibility.

And, as I predicted would happen, DOJ committed to prove that Trump obstructed the vote certification — and nearly got Mike Pence killed — in significant part, with his mob.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

DOJ’s commitment to prove this echoes moves it has taken during past prosecutions — the evidence of Trump’s effect on defendants has already been introduced in plea hearings or at trial.

DOJ has been preparing to prove this for a very, very long time.

Meanwhile they’ve been collecting receipts of all the times that Trump has owned this mob since — including receipts from the Waco rally kicking off his current presidential run.

The Government will further establish the defendant’s criminal intent by showing that, in the years since January 6, despite his knowledge of the violent actions at the Capitol, the defendant has publicly praised and defended rioters and their conduct. There is a robust public record of how rioters’ actions at the Capitol on January 6 were extraordinarily violent and destructive, including attacks on law enforcement officers with flag poles, tasers, bear spray, and stolen riot shields and batons. One officer who was dragged into the crowd endured a brutal beating while members of the crowd reportedly yelled, “Kill him with his own gun!” Terrified lawmakers and staff hid in various places inside the building, and many were evacuated. Despite this, the defendant has never wavered in his support of January 6 offenders. For instance, the Government will introduce at trial the defendant’s own statements in the years since January 6 proclaiming it “a beautiful day” and calling rioters “patriots,” many of whom he “plan[s] to pardon.”2 The Government will also introduce evidence of the defendant’s public support for and association with the “January 6 Choir,” a group of particularly violent January 6 defendants detained at the District of Columbia jail. 3 The defendant’s decision to repeatedly stand behind January 6 rioters and their cause is relevant to the jury’s determination of whether he intended the actions at the Capitol that day.

3 The defendant began a campaign rally in Waco, Texas, on March 25, 2023, by playing a recording of the Star-Spangled Banner by the January 6 Choir. Of the January 6 Choir, the defendant told the crowd, “[O]ur people love those people, they love those people.” See C-SPAN at 2:44, https://www.c-span.org/video/?526860-1/president-trump-holds-rally-waco-texas. The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/.

In an attempt to avoid the fate hundreds of them have already faced, Trump attempted to disavow his mobsters.

DOJ intends to prove that Trump was very much a part of the mob that attacked the Capitol on January 6 and almost got his Vice President killed.

I have been critical of NYT’s serial effort — now joined by WaPo — to predict retribution in a second Trump term, without doing any recent reporting on how that represents a continuation of Trump’s first term, not anything new. Rather than assign three reporters (including reporters who played key roles enabling past retribution efforts) to treat this as a hypothetical future endeavor, why not assign one to report on newly disclosed details of how Bill Barr ordered Scott Brady to dig up more evidence against Joe Biden’s son?

The attention on the WaPo, especially, has sucked up attention that might otherwise be focused on an excerpt from Jonathan Karl’s new book. It’s about the same thing — retribution. But not about past retribution, nor future retribution, but the way that Trump is leveraging cultural cues about retribution, starting with the launch of his campaign from Waco, TX on the thirty year anniversary of the raid (connotations that were evident in advance).

Given the excerpt, I’m not entirely sure whether Karl thinks Trump is doing this out of a sense of weakness, or because he knows the cultural connotations retribution invokes will elicit a certain kind of response from his followers.

Karl describes how Trump turned to this theme after being rattled by his first indictment (and elsewhere describes Trump’s fury at Todd Blanche to agreeing to a trial data in the Alvin Bragg case prior to the end of the primaries).

The problem was that the indictment had rattled him. For all his bluster, Trump desperately wanted to stave off an arrest, and he was embarrassed he hadn’t been able to. When it came time to turn himself in, he slipped out of Trump Tower and got into a black SUV.

[snip]

D.A. Bragg and Juan Merchan, the presiding judge, were met by a version of Donald Trump that was much quieter, more somber—more timid—than the man he appeared to be on television and social media. The night before, he had said that Bragg should “INDICT HIMSELF.” But finally given a chance to confront them face‐to‐face, Trump was mostly silent. During the 57‐minute proceeding, Trump said just 10 words—“not guilty,” “yes,” “okay, thank you,” “yes,” “I do,” “yes”—and spoke so quietly that reporters had to strain to hear him.

For the first time in years, Donald Trump was not the most powerful person in the room.

Karl also describes Steve Bannon revelling in the explicit Neo-Confederate iconography of the speech Trump gave at CPAC.

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

Both can be true, of course. Faced with a kind of vulnerability he has never before faced and willing to burn everything down to find a way out, Trump is all too happy to mobilize far right extremists as his instrument (in his description of the Waco event, Karl describes Trump celebrating January 6).

To the extent that Trump’s campaign logic is retribution, then, the spate of stories — both the NYT one and the WaPo one featuring Trump-whisperers — simply reinforce Trump’s campaign message while downplaying the way Trump has always engaged in retribution, often backed by threats of violence.

Indeed, they help Trump provide assurances that in the future, he’ll find better prosecutors than John Durham, who was every bit as corrupt as the prospective stories predict Trump’s select prosecutors might be in the future, every bit as much about retribution, but who never found evidence that could sustain a conviction. He’ll find better prosecutors, more corrupt ones, Trump needs to tell his mob, because quite honestly, he made these very same promises in 2020 and failed to deliver, though did untold damage in the process.

And those failures weren’t for want of trying or any kind of ethical compunction on his part or the instruments of his retribution.

The reason I think Karl’s descriptive piece is more useful than the predictive pieces (aside from the way the predictive pieces totally whitewash Trump’s past unprecedented focus on retribution) is because he identifies the puzzle at the core of Trump’s success running on retribution: What’s in it for his mob? Why does this focus on retribution work?

“If they can do it to him they can do it to you,” Donald Trump Jr. tweeted. Noticeably absent from Trump’s obsession with his own victimization was any real focus on helping Americans who weren’t under criminal investigation, but his advisers were convinced that the ploy would work. “This week, Trump could lock down the nomination if he played his cards right,” Bannon told me as rumors began to swirl of Bragg’s indictment. “‘They’re crucifying me,’ you know, ‘I’m a martyr.’ All that. You get everybody so riled up that they just say, ‘Fuck it. I hate Trump, but we’ve got to stand up against this.’”

[snip]

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

But “they” weren’t coming after Trump’s law‐abiding supporters—they were coming after Trump. Decades earlier, the presidential candidate Bill Clinton told voters that he felt their pain. Trump was now doing the reverse, trying to persuade his supporters to feel his pain as if it were their own. [my emphasis]

The answer this question is both obvious, and urgent.

It’s obvious, because Trump really is keying into something that isn’t entirely about extremism. And/or Trump is in many cases the gateway drug to radical extremism, something that has shown up over and over in January 6 cases. People respond to something in Trump and then, because Trump’s networks include large numbers of right wing extremists, their ideology gains traction where they might otherwise not. And then the cultural coding of retribution starts to resonate.

It’s urgent, because whether or not Trump wins election, if he primes his mob to embrace political violence again, January 6 will look like elementary school recess. On January 6, many people were armed, but even the ones who brought guns — and plenty did — kept them holstered. That won’t be true the next time.

It is more urgent to show how Trump’s past obsession with retribution hurt people, from his targets, to American security, to the wives of Republican Congressmen, than it is to report that he’ll do more of the same, only earlier this time. It is more urgent to understand why Trump’s mob buys into his messiah syndrome and puncture its power.

I’m not suggesting we return to a moody contemplation of the Deplorables. Nor am I hoping NYT reverts from its prospective reporting on retribution to its past obsession with Trump supporters in diners.

I’m asking for a focus on the continuity of retribution in Trump’s power — past, present, and future — along with some soul-searching about the media’s cooperation in that retribution dynamic.

Of particular note: the media’s coverage of Trump’s legal woes has only helped him create this dynamic.

Take the coverage of Trump’s testimony in his fraud trial yesterday. The NYT was one of the rare outlets that got into something substantive — that Trump did have a role in the valuations that Judge Engoron has already ruled to be fraudulent — in a headline; and it reported on that substance after six paragraphs describing Trump’s stunts. Most of the rest, however, reported nothing but conflict, virtually all of it staged or baited by Trump. Trump succeeded in entirely flooding out any reporting on his fraud — something that goes to the core of his ability to govern, something that goes to his success at fooling supporters and lazy journalists — by distracting everyone with spectacle, a strategy Rolling Stone reported he would adopt a month ago. Rather than reporting on all the evidence — even presented yesterday, amid the circus stunts — that Trump is actually the guy sticking it to the little guys, not the one vindicating them, most outlets just printed one after another of Trump’s taunts.

And in the process, just like any other staged wrestling match, spectators pick one or another side and root loudly, brainlessly. Even for those rooting for law and order, that’s unhealthy, because it invites hero worship and a false belief that prosecutions are easy and quick. It encourages people to outsource defense of democracy to prosecutors rather than do the hard work of organizing themselves. It invites people to engage in mockery rather than rational assessment of the legal case.

But for those who’ve been convinced by unrelentless propaganda about the Russian investigation — which showed that five top Trump aides lied to cover up Trump’s ties with Russian, for those who bought into Trump’s sustained attack on the legitimacy of democratic elections, for those who’ve been bombarded by non-stop coverage of Hunter Biden’s dick pics, the side they’ll pick is obvious. Adopt Trump’s conflict staging, and you will only ever heighten existing partisan divides.

Trump doesn’t care if a bunch of self-satisfied people mock him as a clown. Indeed, that’s what he wants. Because every time they do so publicly, it reaffirms that he’s the guy on the side of average people, fighting the pencil-headed assholes who frown at the little guy. Plus, if you mock something as serious as a lifetime of defrauding financial institutions as a circus, rather than explain how it allowed Trump to get something he hadn’t earned, it tells everyone that Trump’s adjudged fraud isn’t really serious. In your actions, you confirm the argument he is making.

And all the while, it prevents anyone from talking about how Trump has disavowed all the January 6ers who are facing the consequences of following Trump, claiming he has no role in their crimes. It prevents anyone from talking about why leaving nuclear documents in your bathroom requires spooks to shut down collection programs, leading directly to diminished US influence as war breaks out overseas. It prevents anyone from talking about how all of Trump’s brand has been built off lies claiming he, his net worth, his gaudy penthouse are much larger than they are.

Regular life may be screwing over the little guy (or, under Biden, regular life might have delivered financial gains and a resurgence of organized labor strength that never gets covered). But that’s a different thing than saying that “they” are coming for the little guy.

Yet Trump continues to convince people differently, in large part because the media plays along with Trump’s staged circus.

In a hearing in the stolen documents case on November 2, Jay Bratt implored Judge Aileen Cannon not to base the timing of the Florida trial based on assumptions about the DC case, because that trial date

The Court really cannot let or should not let the D.C. trial drive the schedule here. In the D.C. case, they are making many of the same arguments, though they have not yet filed a motion for adjournment. They have already said that they likely will. They have talked about —

[snip]

A lot of this, though, is in the realm of the — I don’t want to say hypothetical, but it is in the realm of we don’t know what is going to happen. We don’t know what is going to happen in this case. We don’t know what is going to happen in the D.C. case. Among the things that the Defense has raised in the D.C. case is that if there are adverse rulings on any of the pending motions to dismiss, that they would seek an appeal and seek to stay the proceedings. That could happen. We don’t know. Obviously, there are arguments both ways, arguments both before the Trial Court before the D.C. Circuit, but that could happen. That trial date could disappear.

[snip]

Things could happen, things could happen with the D.C. case that would make going forward on May 20th, 2024, in this case not feasible. That may happen and we can address that, at that time, but we should be moving forward in this case.

The one thing he mentioned that could happen was a defense request to stay proceedings pending appeal.

Judge Tanya Chutkan certainly doesn’t want anything to delay the DC case. She said that explicitly in an October 16 hearing on Trump’s bid to stay her gag order.

THE COURT: This trial will not yield to the election cycle and we’re not revisiting the trial date, Mr. Lauro.

Perhaps to make that even clearer, after Trump filed to motion a stay pending appeal of any decision on his Absolute Immunity argument on November 1, she issued a requested order pertaining to jury selection by setting the beginning of that process to start on February 9.

But Jack Smith’s team appears to be concerned that Trump may use interlocutory appeals to delay the trial. In a response to Trump’s November 1 motion, Molly Gaston not only opposed that stay (which she described as an attempt to apply appellate and civil procedure to this criminal trial), but she requested that Judge Chutkan prioritize those decisions that are subject to interlocutory appeal: the Absolute Immunity bid, and one part of Trump’s Constitutional challenge to the indictment pertaining to double jeopardy.

[T]he defendant’s stay motion exposes his intention to use his meritless immunity claim to disrupt the Court’s schedule. Accordingly, to prevent undue delay and maintain the trial date, the Court should consider and decide first among the motions pending on the docket the defendant’s two claims that could be subject to interlocutory appeal: presidential immunity and double jeopardy.

In her motion, Gaston lays out Trump’s various dilatory tactics.

The defendant has planned to file this motion for months but waited until now in hopes of grinding pretrial matters to a halt closer to the trial date. As early as August 28, 2023, for instance, defense counsel informed the Court that the defendant would raise “executive immunity . . . with the Court likely this week or early next week, which is a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case. . . .” ECF No. 38 at 33-34. But the defendant did not file an immunity motion that week or the following. Instead, he waited more than a month before filing the promised pleading on October 5. See ECF No. 74. The defendant then waited another month to file the stay motion, late at night on November 1. Tellingly, earlier that same day, when defense counsel appeared at a hearing in the defendant’s criminal case in the Southern District of Florida, he used this Court’s March 4 trial date and pretrial schedule as an excuse to try to delay that trial—without disclosing that, within hours, he would file his stay motion here seeking to disrupt and delay the very deadlines in this case that he was using as a pretense. See United States v. Trump, No. 23-80101, Hr’g. Tr. at 24 (S.D. Fla. Nov. 1, 2023). In short, the defendant’s actions make clear that his ultimate objective with the stay motion, as has consistently been the case in this and other matters, is to delay trial at all costs and for as long as possible.

To thwart Trump’s efforts to stall any longer, Gaston requests that Chutkan prioritize the issues that can be appealed.

To limit such disruption, the Court should promptly resolve the defendant’s immunity motion, as well as his double jeopardy claim that is also potentially subject to interlocutory appeal, so that the Government can seek expedited consideration of any nonfrivolous appeal and preserve the Court’s carefully selected trial date.

She promises DOJ will use all mechanisms available to accelerate Trump’s own appeal.

To prevent the defendant from using the timing of any such appeal to disrupt the Court’s trial date, the Court should promptly consider and decide his immunity and double jeopardy motions. If the Court rules in the Government’s favor and the defendant appeals, the Government will take all possible measures to expedite the appeal, see Apostol v. Gallion, 870 F.2d 1335, 1339-40 (7th Cir. 1989) (identifying mechanisms such as requesting summary affirmance or asking to expedite the appeal), just as the defendant sought to expedite his appeal of the Court’s Rule 57.7 Order—relief that the court of appeals provided. See United States v. Trump, No. 23-3190, Order (D.C. Cir. Nov. 3, 2023) (expediting merits briefing and oral argument). In any event, although a non-frivolous appeal would temporarily divest this Court of jurisdiction, it would do so over only “those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). In sum, the Court’s prompt resolution of the defendant’s immunity and double jeopardy claims would best position this case to stay on track with its current pretrial schedule and trial date.

The thing is: The double jeopardy claim is frivolous; James Pearce noted that the four charges in the current indictment are for a totally different crime than the incitement of insurrection charged in impeachment.

But no matter how shitty the Absolute Immunity bid is, because of the historic nature of the case, all judges are going to take it seriously, including Chutkan.

The Absolute Immunity bid was fully briefed on October 26. Trump’s reply in the double jeopardy bid is due next week.

I don’t know appellate procedures well enough, nor can I imagine how John Roberts’ court will respond to a request to expedite something like the Absolute Immunity request.

But I do know that Jack Smith’s team seems to recognize that this bid for delay might work. Political pundits on both sides of the aisle are accounting for a trial that will start on March 4. But there has not yet been enough scrutiny on whether Trump’s bid for delay will succeed.

DOJ submitted their responses to Trump’s motions to dismiss today. As a reminder, here’s my summary of Trump’s arguments.

I’ll write them up tomorrow, but here are links:

• MTD on Statutory and Constitutional Grounds
• MTD Selective Prosecution
• Motion to Strike
• Motion to Stay

Here’s my Xitter thread on the omnibus response to MTD on Statutory and Constitutional Grounds.

Judge Tanya Chutkan issued her order denying Trump a stay of her gag order on October 29.

That was admittedly a Saturday. Nevertheless, it took Trump four days before he ran to the DC Circuit to cry about an emergency infringement on the First Amendment rights of him and his mob.

He took those four days even as he demanded that the DC Circuit — which had been expecting Trump’s initial brief on November 8 — rule on this motion by November 10.

The Court should stay the Gag Order pending appeal. In addition, President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023. If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court.

During those four days that Trump didn’t file for a stay, John Lauro found time to file three different things (one, two, three) in Judge Chutkan’s docket. In those four days, Trump posted a slew of attacks on Joe Biden, the 2020 election, and his prosecution (though admittedly many of the recent posts targeted Arthur Engoron), many of them attacks that — he claims — this gag prevents him from making.

I’ll leave it to smarter people to explain the posture that leaves this case.

What I’m more interested in are the arguments that Trump makes that should not withstand prolonged scrutiny, at least not at the DC Circuit, arguments that are surely designed to trigger the interest of Sam Alito and Clarence Thomas.

In his appeal, Trump argues — substantially for the first time — that his gag subjects him to viewpoint discrimination. There’s a very short section dedicated to the topic, citing an inapt precedent.

7. The Gag Order reflects forbidden viewpoint discrimination.

By forbidding speech that “target[s]” certain individuals, the Gag Order prohibits only (vaguely defined) negative speech about them. See infra, Part I.C. In Matal v. Tam, the Supreme Court held that prohibiting only negative or “disparaging” speech constitutes forbidden viewpoint discrimination. 582 U.S. 218, 243 (2017) (plurality opinion). Such a prohibition “constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny.” Id. at 247 (Kennedy, J., concurring in part and concurring in the judgment). To prohibit “disparaging” speech “reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.” Id. at 249; see also R.A.V., 505 U.S. at 391- 92. The Gag Order violates these principles

Trump lards the rest of the discussion with claims that a gag tied to the crimes alleged against Trump amounts to censorship of right wing views.

Based this speculation, the district court entered a sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate, based solely on an unconstitutional “heckler’s veto.” The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.

[snip]

President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself. The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed.

[snip]

As a viewpoint-based prior restraint on the core political speech of a Presidential candidate to an audience of over 100 million Americans, the Gag Order is virtually per se invalid.

There are nine appearances of the word “viewpoint” in the entire appendix. All appear in Trump’s filings bidding for a stay, not his underlying opposition to the gag. But all of those also appear as part of an argument about political speech — an important argument, but one largely divorced from the circumstance of this gag, not as a free-standing argument about the free speech of nutjob right wingers.

That argument is closely related to (and builds on) another argument that Trump belatedly raised: that gagging his speech harms the First Amendment rights of his 100 million followers.

4. The Gag Order violates the rights of tens of millions of Americans to receive President Trump’s speech.

The First Amendment’s “protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). A restriction on President Trump’s speech inflicts a reciprocal injury on the rights of over 100 million Americans who listen to him, irrespective of their political beliefs.

This right of listeners to receive President Trump’s message has its “fullest and most urgent application precisely to the conduct of campaigns for political office,” especially for the Presidency. Susan B. Anthony List, 573 U.S. at 162. Ford emphasized that, if Congressman Ford were silenced, “reciprocally, his constituents will have no access to the views of their congressman on this issue of undoubted public importance.” 830 F.2d at 601. Likewise, Brown stated that “[t]he urgency of a campaign … may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications….” 218 F.3d at 430.

In Trump’s appeal, he doesn’t cite evidence supporting this number, but — as I already noted — the underlying motion relies on garbage double counting of bots on the Twitter platform Trump no longer uses. Given that this argument is based on fraudulent numbers, it amounts to a defense of the First Amendment rights to listen of Trump’s imaginary friends, including the Russian bots the now-deceased Yevgeniy Prigozhin deployed to fuck with US politics.

The problem with this argument is, as DOJ noted in its response to Trump’s bid for a gag, Trump misrepresented the record on that point.

11 The defendant did not invoke these interests in his response to the Government’s motion for an order under Local Criminal Rule 57.7(c). And while the defendant claims to have invoked these interests at the hearing, only to have been unfairly interrupted by the Court (ECF No. 110 at 17), his citations mischaracterize the record. For example, he asserts (id.) that the Court interrupted him in response to his statement, “And what the government is proposing here is an order not just directed against President Trump but against the American electorate that wants to hear from President Trump under these circumstances.” The Court did not, in fact, interject in response to that point. See ECF No. 103 at 44. Rather, it was only several sentences later, after defense counsel returned to his oft-repeated talking point that “[t]his is the first time we’ve had a sitting administration prosecute a political opponent” that the Court responded, “I’m going to interrupt you. . . . You have said that. You have said it repeatedly. I have heard it.” Id. Likewise, the defendant asserts (ECF No. 110 at 17) that, when counsel said, “The American people are entitled to understand that and understand the consequences of that,” the Court simply responded, “No.” The Court did no such thing. After defense counsel’s comment, the Court asked why the defendant “is entitled to suggest that an appropriate punishment would be death.” ECF No. 103 at 59-60. When defense counsel invoked the First Amendment in response, the Court said, “No. As part of that. But again, the First Amendment protections must yield to the administration of justice and the protection of witnesses.” Id.

In a footnote of Judge Chutkan’s order denying the stay, she agreed.

Defendant’s Motion argues that his speech restrictions are inconsistent with the “right of listeners to receive President Trump’s message.” Motion to Stay at 15. Defendant did not squarely raise that argument in his opposition brief to the government’s original motion; the closest he came to identifying any authority for it was an unrelated “see also” citation to United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987), a case that he now quotes to support his right-of-listeners argument. Compare ECF No. 60 at 5, with Motion to Stay at 16. But the court expressly addressed and distinguished that case. Order at 2–3. In any event, the argument does not alter the fundamental principle that First Amendment rights, whether those of the speaker or the listener, may be curtailed to preclude statements that pose sufficiently grave threats to the integrity of judicial proceedings.

Undeterred by that footnote, Trump argues that Chutkan’s failure to address something he didn’t raise is her reversible error, not a waiver on his part.

Though the issue was raised repeatedly, A159-60, A165, A178; A47, A62-63, the district court gave the First Amendment rights of President Trump’s audiences no meaningful consideration. The Gag Order does not mention them, see A1-3, and the district court declined to consider them when President Trump raised them, e.g., A47, A62-63. That is reversible error.

I’ve linked two of the spots in the record, above, where John Lauro imagines he raised this — A47, which he cites twice, was in the oral arguments, not the underlying brief. None was a substantive argument about his imaginary 100 million friends. Here’s the appendix if you want to see if you can find what other things he is citing to.

There are other problems with this appeal. Trump doesn’t address the part of Chutkan’s order that explicitly permits Trump to attack, “the current administration or the Department of Justice.” Trump does not engage, at all, with the evidence DOJ submitted of expected trial witnesses testifying under oath about how mobs started threatening them after Trump tweeted mean things. Notably, Trump’s citations to the government’s examples of threats that Trump made between August 2 and September 26 doesn’t cite to the footnotes in the government response that reference the threat — made the day after the linked threat, “if you come after me I’m coming after you” — to Judge Chutkan herself.

By the time the Gag Order was entered, the case had been pending for almost three months, and President Trump had often spoken about it. The prosecution provided seventeen examples of public statements by President Trump between August 2 and September 26, 2023, that it considered objectionable. A140-46; A190- 91. However, it did not produce any evidence that any prosecutor, witness, or court staffer experienced “threats” or “harassment” after President Trump’s speech. Likewise, it did not produce any evidence that any witness or prosecutor felt threatened or intimidated by President Trump’s speech—however subjectively—during three months of President Trump’s public commentary on the case. See A140-46; A190-91.

Lauro claims DOJ didn’t present any evidence that anyone, including court staffers but not the judge herself, felt intimidated by threats that followed on Trump’s incitement and simply ignores that footnote. But someone in Judge Chutkan’s chambers alerted the Marshals after that threat, and the FBI deemed it sufficiently dangerous to arrest Abigail Jo Shry for making it.

So there are other problems with this appeal, exhibiting the same obstinate refusal to address the record as it stands that Judge Chutkan described in her opinion refusing the stay.

But the key dynamic, in my opinion, is that Trump is trying to refashion his argument to trigger the known biases of Sam Alito and Clarence Thomas. But he’s doing so — launching a bid to protect the First Amendment rights of his imaginary friends — after the fact.

This is not a frivolous argument. The legal arguments should bear the weight of the historic decision that ultimately will result.

But instead of making serious arguments, John Lauro has pitched the Supreme Court’s right wing justices an argument about Trump’s imaginary Twitter friends.

Update: A DC Circuit panel of 3 Democratic appointees (Obama, Obama, Biden) has stayed the gag and ordered and set an expedited briefing that is quick enough SCOTUS is unlikely to have any reason to intervene.

PER CURIAM ORDER [2025399] filed considering motion to stay case [2025149-2], ORDERED that the district court’s October 17, 2023, order be administratively stayed pending further order of the court. Further ordered that his case be expedited. setting briefing schedule: APPELLANT Brief due 11/08/2023, at 5:00 p.m.. APPENDIX due 11/08/2023, at 5:00 p.m.. APPELLEE Brief due on 11/14/2023, at 5:00 p.m., APPELLANT Reply Brief due 11/17/2023, at 12:00 p.m., scheduling oral argument on Monday, 11/20/2023. Before Judges: Millett, Pillard and Garcia. [23-3190] [Entered: 11/03/2023 05:06 PM]

Yesterday, Ohio Senator JD Vance gave a speech explaining that he is holding up the confirmation of a US Attorney candidate for his own state because Donald Trump is being prosecuted for stealing classified documents but — Vance claimed in an earlier version of this rant — “the President and his family [go] completely untouched.”

Meanwhile, yesterday’s version of Vance’s harangue claimed that “it is Joe Biden’s border policies that have invited this fentanyl into our country at record levels.”

It’s an interesting take, given that Republicans keep dragging law enforcement away from fighting the fentanyl crisis  so they can explain that the conspiracy theories right wingers believe about the investigation into Hunter Biden are false.

In a July hearing where both Jim Jordan and now-Speaker Mike Johnson complained — relying on Terry Doughty’s badly misinformed opinion — that (they claimed) the FBI had prevented millions of people from sniffing Hunter Biden’s dick pics before the 2020 election, Chris Wray pointed to the impact two drug busts had had in Marion, Ohio.

Just last month, for instance, the FBI charged 31 members of two drug trafficking organizations responsible for distributing dangerous drugs like fentanyl, cocaine, and methamphetamine throughout the area around Marion, Ohio. In that one investigation, run out of the FBI’s 2-man office in Mansfield, we worked with partners in multiple local police departments and sheriff’s offices to take kilos of fentanyl off  Marion’s streets, enough lethal doses, I should add, to kill the entire population of Columbus, Cleveland, and Cincinnati, combined.

As I noted at the time, this was good staff work. Marion, Mansfield, and Lorrain are all in Jim Jordan’s district (and so all obviously constituents of Vance, as well).

Jim Jordan took time out of Chris Wray’s day so he could complain about Hunter Biden’s dick pics, while ignoring the drug problems facing his own constituents.

It’s not just Wray.

In testimony last week before Jordan’s committee, the US Attorney for Los Angeles, Martin Estrada, struggled to explain to Jordan’s staffers why his own top AUSAs didn’t think it smart to reallocate prosecutors to partner on the Hunter Biden investigation at a time his office was 40 prosecutors short of the number they’re supposed to have. As Estrada explained, instead, CDCA granted Special AUSA status to some prosecutors from Delaware and had done so even as Gary Shapley wailed that nothing was going on in LA.

Jordan’s top aide Steve Castor was incredulous that Estrada wouldn’t know specific details about what the Delaware prosecutors granted Special Assistant status to pursue a case against Hunter Biden in LA were doing.

I mean, this is a potential prosecution of the President’s son. If the lawyers from the District of Delaware were out in your district discussing the case, don’t you think you’d know about it?

When Estrada tried to get Castor to understand how different the priorities looked when you were running the country’s biggest US Attorney’s office, fentanyl was the first thing he raised.

I think a little context would be helpful. So, as I said, we have the largest district in the country. We have a Fentanyl epidemic which is one of the worst in the country’s. We’ve done more death-resulting cases than any other district in the country. We’re on pace to do more this year than we ever had before.

[snip]

There are a lot of high-profile cases, so I don’t meet with attorneys on every single high-profile case.

[snip]

We have a fentanyl epidemic. That includes not just death-resulting cases, it includes going after cartels which are distributing these pills, not just in powder form but in pill form. We routinely seize over a million pills at a time from vehicles, and we need to prosecute those cases. Each pill could be a death. And routinely now we’re finding cartels transporting fentanyl in liquid form, which is a new thing that they’re doing. So we have to do those cases.

Republicans claim to care about the fentanyl crisis. But in reality, they keep proving that they care more about Hunter Biden’s dick pics than they do about their troubled constituents in Marion, OH.

Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.