Trump’s Retribution Promises and Media Complicity

I have been critical of NYT’s serial effortnow 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.

Jack Smith Attempts to Prevent Trump from Delaying DC Trial with Interlocutory Appeals

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’s Responses on Trump’s Motions to Dismiss

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:

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

Trump’s New Appellate Argument about His 100 Million Imaginary Friends

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]

Jim Jordan Dragged Martin Estrada Away from Fighting Fentanyl To Chase Hunter Biden’s Dick Pics

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 complainedrelying 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.

Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

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.

After Trump Issued Threats, Abigail Jo Shry “Came after” Judge Tanya Chutkan

As noted, Judge Tanya Chutkan lifted the stay on the gag she imposed on Donald Trump. In her opinion lifting the stay, Chutkan laid out how Trump’s garden variety attacks on Joe Biden were fair game under the gag, but his specific attack on Mark Meadows in conjunction with the Jack Smith prosecution was not.

Two of Defendant’s social media posts since the Order’s entry illustrate the comprehensible difference between the statements it permits and those it proscribes. First, on October 20, 2023—after the Order was entered, but before it was administratively stayed— Defendant stated:

Does anyone notice that the Election Rigging Biden Administration never goes after the Riggers, but only after those that want to catch and expose the Rigging dogs. Massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent. We will never let 2020 happen again. Look at the result, OUR COUNTRY IS BEING DESTROYED. MAGA!!!3

This statement asserts that Defendant is innocent, that his prosecution is politically motivated, and that the Biden administration is corrupt. It does not violate the Order’s prohibition of “targeting” certain individuals; in fact, the Order expressly permits such assertions. Order at 3.

By contrast, on October 24, 2023—after the Order was administratively stayed— Defendant stated:

I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone, and we’re not at all interested in exposing those that did the RIGGING — If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!4

This statement would almost certainly violate the Order under any reasonable definition of “targeting.”5 Indeed, Defendant appears to concede as much, Reply in Support of Motion to Stay, ECF No. 123, at 10 n.3 (“If the Gag order had been in effect, President Trump would have been unable to [make the statement].”)—and for good reason. The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a “lie” “mad[e] up” to secure immunity, and it attacks him as a “weakling[] and coward[]” if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case. The plain distinctions between this statement and the prior one—apparent to the court and both parties—demonstrate that far from being arbitrary or standardless, the Order’s prohibition on “targeting” statements can be straightforwardly understood and applied.

3 https://truthsocial.com/@realDonaldTrump/posts/111267550982205234.

4 https://truthsocial.com/@realDonaldTrump/posts/111293117150329703.

5 Because of the administrative stay on the Order, this statement is not before the court. Before concluding that any statement violated the Order, the court would afford the parties an opportunity to provide their positions on the statement’s meaning and permissibility.

Since Chutkan lifted the stay, Trump has made six attacks on his failing social media platform, four complaining that the prosecution against him wasn’t initiated three years ago (under Bill Barr?!?! at a time when Bill Barr was still corruptly shutting down prosecutions of Trump and his people?!?!?!), before the conspiracies charged against him started, and two attacking Judge Chutkan.

All of these attacks are perfectly permissible under the gag.

While Chutkan’s staffers are covered by the gag, she specifically excluded Joe Biden and herself from the gag.

Because Chutkan is excluded from the gag, I thought it worth reviewing the specific circumstances of the threat Abigail Jo Shry made against Judge Chutkan, which as I noted first got raised in the government’s opposition to staying the gag.

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

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

That is, it first got raised explicitly in the opposition to lift the stay.

Not stated anywhere in this filing is that when DOJ said Shry made her threat against Judge Chutkan and Sheila Jackson Lee “shortly after” Judge Chutkan was assigned to the case, they mean Shry made the threat on August 5, one day after Trump issued his, “if you come after me” threat, which was included in the initial motion for a gag (the consideration of which, remember, John Lauro succeeded in stalling for ten days).

Trump followed that attack with more, including several almost identical to the ones he used overnight, except that they swapped out Jack Smith (who is covered under the gag) for Joe Biden.

When DOJ first moved for a gag on September 5, Shry remained detained pretrial, based on the findings that she had repeatedly made increasingly serious threats in the previous year.

Defendant has been criminally charged four times in the past year for engaging in similar conduct. On September 20, 2022, she was convicted in two separate cases (misdemeanor resisting arrest and misdemeanor criminal mischief) and sentenced to 30 days imprisonment. Recently, on July 11, 2023, she was charged with misdemeanor threat causing fear of imminent serious bodily injury. It is alleged that she committed the instant offense while on bond for the July 11 incident, less than one month after it occurred.

Defendant suffers from major depression and has a long history of substance abuse. She denies using any illegal substances for the past year. However, according to Defendant’s father, she excessively drinks beer daily. Defendant lives with her boyfriend, but he is presently charged with a family assault against her. Defendant has two children, ages 17 and 19, who currently live with her parents.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats. He has agreed that Defendant can reside with him and Defendant’s mother, and he would serve as a third-party custodian.

Defendant’s aggressive and threatening behavior has continually escalated during the past year as evidenced by her criminal conduct in four separate cases.

But by the time DOJ resubmitted the motion on September 15, Shry had been released to home detention with an order to get mental health and substance abuse treatment.

In less than 24 hours since the stay, Donald Trump has shown a fine-tuned ability to continue to issue threats even as he adheres to the letter of the gag, just like I used to legalistically adhere to my seventh grade Geometry teacher’s rule against chewing gum in class by simply not chewing the gum in my mouth.

But there are thousands — maybe millions — of Trump supporters with mental health problems out there, sitting on couches, getting worked up about what they see on Fox News.

And as this gag gets appealed all the way to SCOTUS, Judge Chutkan has chosen to entrust her own safety from threats like Shry’s to the US Marshals, not to any gag.

Update: Fixed some points where I said the opposite of what I meant wrt lifting or staying the gag.

Mike Pence Simplifies the Gag Order Dispute

If my Irish Daylight Savings calculation and PACER operations are correct, Donald Trump submitted his reply to DOJ’s opposition to a stay on the gag Judge Tanya Chutkan imposed at around 8:50PM ET last night.

President Trump’s political opponents (some of whom are witnesses), the Biden Administration, and the citizenry writ large in connection with the 2024 campaign. This is precisely where the Gag Order runs headlong into unconstitutional shoals. President Trump is absolutely entitled to defend himself publicly and explain with specificity why the charges against him are false and meritless.

The filing includes the kind of sophistry John Lauro excels at. It continues to artificially dismiss the abundant evidence that Trump’s statements routinely lead to violence (in one place, by dismissing anything that happened more than three months ago: Taylor Taranto’s stalking of Barack Obama in response to Trump’s Truth Social post was on June 28, exactly four months before this filing).

But it is not frivolous. Trump wildly misrepresents the scope of the gag, particularly as it pertains to Joe Biden, about whom the gag imposes no restrictions.

This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.

These are not easy First Amendment questions.

And, Trump used the prosecution’s request to put restrictions on witness tampering into Trump’s release conditions (which is where Amy Berman Jackson put a similar gag for similar reasons on Roger Stone) to note its tactical position of strength.

The prosecution’s request is also jurisdictionally improper. The Court entered the Gag Order, and President Trump promptly filed a notice of appeal. The prosecution does not dispute that the Gag Order is an appealable order. See Doc. 110, at 8. Thus, when President Trump filed his notice of appeal, it divested the Court of jurisdiction to amend or modify the Gag Order: “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The prosecution’s latest proposal seeks to end-run around the Court of Appeals’ jurisdiction by modifying and reasserting the Gag Order as a condition of release while it is being challenged on appeal, which the Court lacks jurisdiction to do. See id.

Trump intends to take this gag order to a partisan Supreme Court where several Justices are already raring to forcibly protect the kind of violent threats that Trump specializes in. Heck, if Trump succeeds as well as he might, his appeal of this gag could solve the problem with the “mob” part of the indictment which I’ve noted.

And all that’s why the stakes of Pence’s decision to drop out of the presidential race yesterday matters.

I came here to say it’s become clear to me: this was not my time. So after much prayer and deliberation, I have decided to suspend my campaign for president, effective today.

He’s absolutely right. It is not the time for someone running on having upheld the Constitution to run in the Republican Party. The GOP is little more than a criminal protection racket to shelter one man, Donald Trump.

Pence dropped out before 5PM ET. By the time Trump submitted his motion claiming some of the witnesses the gag would prevent him from attacking were his political opponents, Pence dropped out of the race.

So long as Pence was in the race running on the policy of upholding the Constitution, as he did on January 6, there was a clear conflict between the gag’s restrictions on Trump’s attacks on witnesses and its explicit permission to attack the policies of his rivals in the 2024 Presidential race.

That conflict has been resolved.

These First Amendment questions are still difficult. This appeal may still give Trump a vehicle to get SCOTUS to protect the kind of mob incitement that is at the core of the indictment.

But yesterday, Pence resolved the most difficult of the questions.

Update: On Sunday night, Judge Chutkan denied the stay. Her order notes:

  • Even if a request to alter Trump’s release conditions were procedurally proper, it’s not necessary to enforce the terms of the gag
  • Trump ignored the causal link between his attacks and certain kinds of threats
  • Trump failed to fully raise the First Amendment interests of his followers in his opposition to a gag
  • Trump ignored the way Judge Chutkan had tailored her order (for example, by not gagging attacks on DC)
  • Trump adopted a dictionary rather than the well-accepted legal definition of “interested parties”
  • The difference between Trump’s general attack on the “Election Rigging Biden Administration,” which is not gagged, and a post claiming “if [Meadows would] say BAD THINGS about that ‘MONSTER'” Donald Trump he might avoid prison, which is gagged, is clear

Lurid Realities: Trump Implies That Selling Nuclear Secrets Is Treason

In this post, I noted that two passages from DOJ’s response to Trump’s Motion to Dismiss for Absolute Immunity — one pertaining to exchanging pardons as part of a quid pro quo, another describing otherwise official acts that would clearly be illegal — actually described things that may have or likely happened under Trump.

Here’s the latter discussion:

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record. [my emphasis]

Trump’s reply to that response addresses this second passage — at least, two items from it — in what it deems to be “lurid hypotheticals.”

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

Since Trump doesn’t include the entire list, here are the four items in it:

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

This footnote seems to suggest more than one and possibly all of these things — in a list including an order to the National Guard and an order to an FBI Agent — would be private acts.

That’s a consistent stance with the claim, in a footnote that concludes on this very same page, that Nixon’s suspected involvement in the DNC burglary as part of an attempt to win an election would also be a private act.

9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon. (Both of these points apply equally to President Clinton’s admitted perjury in the Paula Jones litigation, for which he was never prosecuted. Response, at 19.)

FWIW, I agree with this reply’s argument that DOJ doesn’t aggressively lay out the extent to which Trump’s alleged acts in the January 6 indictment are private acts. But if Trump concedes that Nixon’s suspected role in the DNC break-in to win an election was a private act, then it seems to concede that Trump’s own actions to reverse the outcome of an election he lost would also be a private act.

And Trump’s extension of private acts to this list of four “lurid hypotheticals” would seem to swallow up the entire argument about Presidential immunity.

But it seems to do something else.

There is nothing on that list resembling treason.

Accepting a bribe from Saudi Arabia to win a $2 billion contract for your son-in-law? Not treason.

Ordering the FBI to alter records to gin up an investigation against Joe Biden? Not treason.

Ordering 10,000 National Guard members to protect your mob as it attacks Congress? Not treason — at least not until it kicks off Civil War.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

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

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

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

Delay, disinform, then dismiss.

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

He has lawyers capable of making very competent legal arguments.

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

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

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

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

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

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

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

d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused. [PenceCard]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

image_print