Douglass Mackey Sentenced to 7 Months for Conspiring to Violate 18 USC 241

Douglass Mackey, the right wing troll prosecuted early this year for conspiring to trick Hillary voters into throwing away their votes, was just sentenced to 7 months in prison (the government had asked for 6-12 months).

Minute Entry for proceedings held before Judge Ann M. Donnelly: Sentencing held on 10/18/2023 for Douglass Mackey (1). Appearances by AUSA Erik Paulsen, AUSA Frank Turner Buford, and AUSA William Gullotta. Andrew Frisch counsel for defendant Mackey (present on bond). Probation Officer Erica Vest, present. Case called. Statement from defense counsel, and the government heard. The defendant is sentence on the sole count of the indictment to seven months imprisonment, two years supervised release, $100 special assessment, and a $15,000 fine. Defendant informed of right to appeal. For the reasons stated on the record the defendants request to stay sentencing pending appeal is denied. (Court Reporter Sophie Nolan.) (DG) (Entered: 10/18/2023)

Yesterday, Judge Ann Donnelly denied Mackey’s bid for acquittal or a new trial and today, she denied his request for a stay pending appeal. This post describes how Mackey and his co-conspirator Microchip set out to “infect everything” during the 2016 election.

This is charge, 18 USC 241, is the third charge with which Trump was charged in his January 6 indictment, so Donnelly’s ruling and any appeal Mackey makes may serve as important precedent in that case too.

The Holding Pattern on the Non-Trump January 6 Charges

There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

Steve Scalise Calls Out Donald Trump

Donald Trump and Steve Scalise on better days . . .

Some things age well, like fine wine, George Clooney, Halle Berry, and Robin Wright.

Some things do not.

Back on January 6, 2021, when certain GOP senators and representatives objected to the certification of the Arizona results and the two houses went into separate sessions, Steve Scalise was the first member recognized to speak in the House. Here is part of what he said, taken from the Congressional Record, after some preliminary remarks about the Founders. Note, please, the three parts I put in bold:

. . . We have to follow the constitutional process. Now, there might be reasons why some people don’t like the process laid out by a legislative body. Madam Speaker, I served on one of those legislative bodies when I was in the State legislature for 12 years. I served on the House and Governmental Affairs Committee, where we wrote the laws for our State’s elections. And I can tell you, when we had to make changes, those were extensively negotiated. We would have people on both sides come.

Republicans and Democrats, Madam Speaker, would get together to work through those changes, any minute change to how a precinct would function, to how a change would be made in the time of an election, signature requirements, all the many things that involve a clerk carrying out the duties in each parish, in our case.

You would see people come and give testimony, Madam Speaker. Both sides could come. Clerks of court were there in the hearing rooms.

It was an open process, by the way, not behind closed doors in a smoke-filled room where somebody might want to bully a secretary of state to get a different version that might benefit them or their party or their candidate. That is not what our Founding Fathers said is the process. Maybe it is how some people wanted to carry it out. But they laid out that process.

So when we would have to make those changes, they were in public view; they were heavily debated; and then, ultimately, those laws were changed in advance of the election so everybody knew what the rules were.

People on both sides knew how to play by the rules before the game started, not getting somewhere in the process and saying, well, you don’t think it is going to benefit you, so you try to go around the Constitution. That is not how our system works. It has gotten out of hand. So President Trump has called this out, and President Trump has stood up to it. So many of us have stood up to it.

[snip]

It is time we get back to what our Founding Fathers said is the process for selecting electors: that is the legislatures in public view, not behind closed doors, not smoke-filled rooms, not bullying somebody that might give you a better ruling. Let’s get back to rule of law and follow the Constitution, Madam Speaker.

[end of remarks]

[C-Span video of Scalise’s remarks here.]

Scalise is worried that “somebody might want to bully a secretary of state”? Horrors!

Scalise is concerned that “some people” want a different process that allows for bullying a secretary of state? Say it ain’t so!

Scalise is bothered by the notion that somebody might put pressure on an elections official so that they “might give you a better ruling”? Inconceivable!

. . . pause . . .

. . . deep breath . . .

. . . looking around nervously . . .

. . . checking the skies to see if lightning is about to strike . . .

Waiting for Donald Trump to come down *hard* on Scalise in three . . . two . . . one . . .

Twenty-Five: The Trump Family Member and Other Attorney-Client Delusions

On January 9, I did a post noting that at least 25 of the known witnesses or subjects of the January 6 investigation into Trump were attorneys.

In a filing yesterday, DOJ said the same thing: At least 25 witnesses, including one member of Trump’s family, withheld testimony or documents based on an attorney-client claim.

During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.

To be clear, we’re measuring two different things: for example, while the two Pats — Cipollone and Philbin — as well as Mike Pence’s counsel, Greg Jacob, withheld testimony in their first grand jury appearances, that was based at least partly on an Executive Privilege claim, one prosecutors ultimately overcame, not exclusively on their role as White House lawyers.

And I know I missed a bunch of people who invoked attorney-client privilege. For example, Bernie Kerik — who I didn’t count in my list — withheld documents until forced to share them in the Ruby Freeman lawsuit, based on a claim that his work as a researcher was attorney work product. The Georgia indictment alerted me that I had missed accused Trump co-conspirator Robert Cheeley — and there are probably attorneys in all the other swing states I missed too. I didn’t count the campaign itself. I sure as hell didn’t count any family member (I wonder if the big gap in the January 6 indictment where Ivanka should be is there based off a claim she was acting at the direction of Eric Herschmann, though Herschmann seems to have offered far more cooperation than Ivanka did).

However you count it, though, it’s a breathtaking number, one rarely taken into account by the TV lawyers wailing because it took so long to charge Trump.

And charge Trump alone.

That’s something I kept thinking about as I read this filing: Thus far, not even Trump’s alleged co-conspirators — all of whom might make an attorney-client claim (even Mike Roman might be that non-lawyer intermediary, though I think it more likely Boris Ephsteyn is CC6) have been charged.

The government’s argument itself makes a lot of sense. For example, it enumerates that Trump or his attorneys have claimed they’ll rely on an advice of counsel defense at least seven times.

1 Fox News, Aug. 1, 2023, at minute 3:03, available at https://www.foxnews.com/video/6332255292112.

2 CNN, Aug. 1, 2023, at minute 2:20, available at https://www.youtube.com/watch?v=GW7Bixvkpc0.

3 NPR All Things Considered, Aug. 2, 2023, available at https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.

4 Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.

5 Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.

6 CNN, Aug. 6, 2023, at minute 7:58, available at https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.

7 Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.

The government lays out precedent stating that Trump would have to waive privilege over and share communications that support his advice-of-counsel defense, but also communications over which he and the lawyer are currently shielding behind a privilege claim that would undermine it.

In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege on all communications concerning the defense. See White, 887 F.2d at 270; United States v. Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the defendant must disclose to the Government (1) all “communications or evidence” the defendant intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22- cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is for “information defendant submitted to the attorney on which the attorney’s advice is based, the attorney’s advice relied on by the defendant, and any information that would undermine the defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This disclosure should include not only those documents which support [defendants’] defense, but also all documents (including attorney-client and attorney work product documents) that might impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (quoting Hatfield).

Given that Trump would have to identify exhibits on which he would rely for an advice of counsel defense by December 18, the government argues, he should have to also identify the specifics of any advice of counsel defense by that date as well.

Given the potential number of attorneys and breadth of advice involved, the defendant’s notice should describe with particularity the following: (1) the identity of each attorney who provided advice; (2) the specific advice given, including whether the advice was oral or written; (3) the date on which the advice was given; and (4) the information the defendant communicated or caused to be communicated to the attorney concerning the subject matter of the advice, including the date and manner of the communication.

It makes this argument while also noting something that doesn’t, per se, support its case: that DOJ has already told Trump what these 25 people — and it invokes John Eastman, the person most often mentioned in Trump’s public claims of a advice of counsel defense, by caption — have identified in privilege logs.

In addition to having publicly advanced the defense, the defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”). [my emphasis]

Whatever else this motion is — and on its face it makes a lot of sense — it would also provide a means for DOJ to sort through some of the privilege logs it is looking at, and at least in the case of Eastman (if Trump indeed invoked his counsel as a defense) to breach those privilege claims and even obtain communications it does not yet have. Particularly given Clarence Thomas’ recusal on Eastman’s recently rejected cert petition, Eastman might have unidentified communications of particular interest.

Advance notice would also force Trump to rule out relying on the advice of others, like Rudy or Sidney Powell, as a defense, something that might make charges against them more viable.

I don’t imagine that DOJ would add any of Trump’s co-conspirators to his indictment so long as Trump’s trial happened before the election. They could always charge others separately, but so long as Trump had a chance of returning to the presidency, the only reason to do so would be if there were a legitimate hope of flipping the person or if it would make Trump’s alleged crimes more damaging politically. Trump has pardoned his way out of problems in the past and DOJ has to assume he would again, given the opportunity.

But in addition to making a solid case that Judge Chutkan should make Trump declare his intentions in December, this filing also admits that attorney-client privilege claims continue to blind DOJ to some of the universe of related communications pertaining to January 6.

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Trump Claims Absolute Immunity

I’m going to have to come back and explain the obvious holes in Trump’s argument that he has absolute immunity to commit crimes to steal the election.

But here’s the Tl;dr:

He argues that because he was acquitted in his impeachment trial, he cannot be held accountable (even though numerous Senators said they voted as they did knowing he could be held criminally liable).

He’s misreading his claimed citations, especially the amicus DOJ submitted in Blassingame. Here’s that amicus for your comparison. And here’s Amit Mehta’s opinion in Thompson, which the amicus addressed. Here’s a link to Nixon v. Fitzgerald, the civil case clearly about official acts on which Trump primarily relies.

His spinning the scope of the indictment (importantly, to exclude all claim of incitement, which as I noted DOJ just laid out).

The indictment alleges that President Trump took a series of actions that form the basis of its charges. These acts fall into five basic categories. The indictment alleges that President Trump, while he was still President: (1) made public statements about the administration of the federal election, and posted Tweets about the administration of the federal election; (2) communicated with senior Department of Justice (“DOJ”) officials about investigating election fraud and about choosing the leadership of DOJ; (3) communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it; (4) communicated with the Vice President, in his legislative capacity as President of the Senate, and with other Members of Congress about the exercise of their official duties regarding the election certification; and (5) authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.

And he interprets the Take Care clause to give the President to usurp the power of other parts of government — in this case, Congress and the states.

Third, Thompson’s conclusion that “[t]he President’s Take Care Clause duty … does not extend to government officials over whom he has no power or control,” id. at 78, proves far too much. That formulation entails that the President’s urging the Supreme Court to rule a certain way in a case to which the United States is not a party—for example, in an amicus brief filed by the Solicitor General—is a purely private action outside the “outer perimeter” of Executive responsibility, simply because the President has “no power or control” over Article III judges. Id. That is illogical. Rather, the Take Care duty must extend to exhorting other officials to exercise their responsibilities in a manner consistent with the President’s view of the public good— especially when the issue affects the civil rights of millions of federal voters and addresses a “bedrock function of the United States federal government.” Doc. 1, at 2.

One final thing you’ll note as you read: Trump focuses a lot more attention on issues that are genuinely a close call — his conspiring with Jeffrey Clark — than on his intrusions into Congress’ reserved duties. As noted, he entirely ignores his role in stoking violence.

DOJ’s Theory of Trump’s Mob

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

  • The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
  • In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
  • Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “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,” id. at ¶10d.
  • Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

“Reasonable Persons:” Trump’s Recusal Stunt Flops

Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

[snip]

The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.

THE COURT: Okay.

(Video played.)

[snip]

Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump

As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

On Recusal, Give Trump the Evidentiary Hearing He Demands!

There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.

Trump scolds that an impartial judge should express no opinion.

2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!

Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).

1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.

Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.

But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.

Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.

In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:

1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.

2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1

3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”

4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.

5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.

6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”

7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.

1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]

More importantly, there’s all the other video Chutkan had seen by October 28, 2022.

Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?

Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.

As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.

Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.

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