Citing Trump’s Executive Privilege Stalling, DOJ Asks for January Trial

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DOJ has proposed that Trump’s January 6 trial should start on January 2, 2024.

In addition to citing repeatedly from the things John Lauro has said on the Sunday shows, it cites Trump’s Executive Privilege claims at least two — and almost certainly three — times.

First, it cited the DC Circuit upholding Judge Chutkan’s own decision that the Archives could hand over Trump’s materials to the January 6 Committee.

The D.C. Circuit has determined that “[t]here is direct linkage between [the defendant] and the events of [January 6, 2021],” which it described as “the single most deadly attack on the Capitol by domestic forces in the history of the United States.” Trump v. Thompson, 20 F.4th 10, 35-36 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350, 212 L. Ed. 2d 55 (2022)

Then, it cited Trump’s initial Executive Privilege challenge to J6C’s request.

The defendant has been aware of— and has responded forcefully in opposition to—certain relevant information made public through hearings and the report written by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. See, e.g., Letter from Donald J. Trump to Hon. Bennie G. Thompson, Chairman, House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Oct. 13, 2022).

Finally, it cites first contact with prosecutors in the case in June 2022, which probably was the initial challenge to the testimony of Greg Jacob and Marc Short.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022.

Trump says he can’t go on trial before the election because under the Speedy Trial Act, he’ll need more time. DOJ notes that STA also protects the interest of the public.

And then it notes that Trump has been delaying this investigation in various ways since October 2022.

Update: Technically, I may be wrong about the letter to Bennie Thompson. It is not cited in Trump’s lawsuit against Thompson at all, even though it was sent on the same day as Thompson moved to obtain Trump’s records.

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80 replies
  1. Mike Stone says:

    Whatever date the Judge sets will be appealed by Trump, that is for sure. However, I would think the DC appeals court is probably fed up with his tactics by now and will deny any appeal.

    What are the chances that the Judge gives him a little more time than January 2024?

    • Fraud Guy says:

      The last time he asked for a delay (Chutkan gave boths sides until Friday to meet and agree on a hearing date on the protective order, with that date to be before next Wednesday IIRC), she set the hearing date to tomorrow.

      • Moose #2 says:

        No, she gave them until this past Tuesday to agree on two possible dates/times, both to be between yesterday (Wednesday, 8/9) and tomorrow (Friday, 8/11). Smith said (paraphrasing) “We’re ready anytime”; Trump said (again paraphrasing) “please not Thursday afternoon, because one of us has to be in court elsewhere about Trump’s other crimes. And we misplaced Friday, so that’s not good either. Next week would be SO much better for us. And BTW, please put off the eventual trial because DOJ is being so recalcitrant about even starting discovery.” So she scheduled it for tomorrow (Friday 8/11) morning. Next week was never an option.

        I’m a bit surprised she didn’t pick yesterday, since Trump’s team didn’t say anything about Wednesday being a problem for them.

        But, it would have made more sense to just issue the protective order DOJ suggested, get the discovery started, and have Trump file a motion to modify the order as needed — without delaying the discovery.

    • P’villain says:

      I would be surprised if the Federal Rules of Criminal Procedure make interlocutory review available for such a fundamental procedural decision as setting a trial date.

      • 2Cats2Furious says:

        An interlocutory appeal of a trial setting is certainly not an option in civil litigation.

        I’m less familiar with the Federal Rules of Criminal Procedure, but it seems to me that it would be a matter left to the trial court’s discretion, unless it was obviously egregious (such as setting the trial for the following month).

    • bmaz says:

      On what grounds? Do you think anything and everything is subject to relentless interlocutory appeals? Because that is not how things work.

      • Chris Bellomy says:

        The dread over Trump’s delay tactics is metastasizing as extreme pessimism at every turn, I think.

        • emptywheel says:

          In this case, he’s right on: The reason why an indictment was never going to be the silver bullet MSNBC had you believe is bc prosecutions take a long time and the US rightly protects defendants rights.

          Yes, Trump will get away with things others won’t. But jailing him now would not solve your problems.

        • bmaz says:

          Lol, but am I “inciteful” or “insightful”? Even I am not sure….

          But I really think the clamor for locking Trump up is very misplaced.

  3. Unabogie says:

    Has anyone ever successfully argued that a case scheduled 6 months from the date of the charges would be too fast to go to trial?

    • Narog907 says:

      I’ve seen it argued successfully dozens of times. Anyone who gets their case designated as “complex” under 18 U.S.C. §3006A(d)(3) usually gets their case extended past six months (CJA Guidelines sec. 2.22(B)(3)). And while this isn’t a CJA appointment situation (yet anyway… hahaha) complex cases like this usually don’t go to trial within 6 months. That being said, Jack Smith makes a very good argument as to why this should go sooner rather than later. My guess would be that if Trump gets a six month trial date he’ll wait five months then fire his lawyers. At that point the fun starts.

      • bmaz says:

        You do not just get to “fire” criminal defense lawyers. Not without court ordered substitution. Nor they you, as a client. This ain’t no disco, this ain’t no party, this ain’t no fooling around.

        • theartistvvv says:

          Many is the time I’ve heard my criminal-law attorney friends describe the felony cases, including murders, they have had to try even though the client ran out of money/refused to pay.

          I wrote in another post earlier this week re collection actions in domestic and contract cases – those suits don’t work so well with criminally-charged clients.

          Especially if they lose.

        • bmaz says:

          Yeah, criminal really is a bit different. Get money upfront, because you may not get more. And you may not be able to get off the case. PDs do not have to worry about this, private defense attys do though.

        • narog907 says:

          Exactly. And that’s why I said that’s when the fun starts. When the judge refuses to let the attorneys off the case and they have to take it to trial for what? a month? with a difficult client knowing they aren’t going to get paid. No disco indeed.

  4. DaveVnAz says:

    Elmer Rhodes was indicted and arrested on Jan 13, 2022 (along with 9 other individuals) and found guilty on Nov 19tth 2022 after a 9 week trial. 10 months. True or not, I would think that that was a complex trial.

  5. thorvold says:

    I realize that it is a Saturday next year, but they really missed an opportunity to request that the trial start on Jan 6, 2024.

  6. earlofhuntingdon says:

    Under the Speedy Trial Act, defendant will need more time. Something of a contradiction in terms. As Smith says, at least one lawyer has been advising Trump on this matter for over a year, and he has a team of others. If any of them overlap with his other prosecutions, that’s Trump’s choice, not a necessity. I like that one of the precedents for going from prep to trial to conviction in about six months is the Manafort trial.

    • 2Cats2Furious says:

      I liked the reference to the Manafort case as well.

      I’m impressed that Smith is proposing such an aggressive schedule. He might not get that 1/2/2024 trial date, but I sure hope this is the first criminal case against Trump to go to trial – particularly if it goes before the “hush money” case, which I consider to be the weakest.

      • boatgeek says:

        Not to mention the reference to Mohammed Salameh (1st WTC bomber) and Bob McDonell (VA governor charged with corruption). A real rogue’s gallery there.

    • harpie says:

      And one of the cases they cited for “speedy trial” is United States v. Gambino LOL!

      [pdf3/8] the right to a timely trial is vested in the public, not just in the defendant. […] United States v. Gambino, 59 F.3d 353, 360 (2d Cir. 1995) (“[T]he public has as great an interest in a prompt criminal trial as has the defendant. Certainly, the public is the loser when a criminal trial is not prosecuted expeditiously, as suggested by the aphorism, ‘justice delayed is justice denied.’”).

  7. TimothyB says:

    Thanks for this useful post.

    Three weeks (over the holidays) from start of jury selection pm 12/11/23 to start of trial pm 01/02/24 in the Govt’s proposal. A lot of time and temptation for possible jury tampering and just for jurors to get cold feet or talk to relatives. These could be more worrisome considerations in this particular matter than in others. I could imagine the Court pushing it all back a bit to avoid that.

        • TimothyB says:

          Thanks. Effective moderation is, after terrific content, a leading reason this is one of the best sites on the ‘net.

      • Rayne says:

        As Marcy said it’s being worked on. In the mean time I recommend drafting comments in a plain text app like Notepad and then pasting the final version into the comment text window to reduce the need for editing.

        • David F. Snyder says:

          Maybe useful for commenters wanting to use html: I’ve had decent success with Textastic for my iOS device. It makes html on iOS pretty easy. No spellcheck in it, though — my only complaint about the app.

  8. WilliamOckham says:

    Maybe I’m over reading this, but … this line:

    Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information.[emphasis added]

    Is that a subtle clue as to the identity of Co-Conspirator #6?

      • WilliamOckham says:

        Not to belabor the point, here’s the fuller context

        Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

        I think that suggests that the “accompanying” attorney is not in the set of those “have represented him in this matter for the last year.”

      • emptywheel says:

        Also hearkens back to my point from the other day about which volunteer lawyers who might also be co-conspirators that DOJ wants to keep out of the protective order.

  9. CaptainCondorcet says:

    It is refreshing when reading through court materials that are necessarily full of long citations and complex terminology to encounter a sentence that just reads “Not so.” That filing was a fun read, which I don’t normally extend to legal documents.

    • SteveBev says:

      Everything about this filing was pointed but elegantly economical. In sharp contrast to the Trumpian bluster it efficiently punctures and swats away.

    • Ginevra diBenci says:

      Actually, I would recommend you read more filings, especially appellate rulings by judges from all over the country. While Jack Smith and his team write some banging filings, you might be surprised at the level of writing across the profession.

      I say that as a retired English professor and longtime writing teacher and editor. If I had realized the law was where so many of the best writers went, I might have attempted a different path.

  10. Joeff53 says:

    For an intro to criminal trial court discretion, this time in the context of venue (which is sure to come up) the SCOTUS opinion in Skilling (of Enron infamy) is enlightening.

  11. harpie says:

    I learned a lot from reading this SC filing [finally just finished]
    one quick UNimportant observation:
    it goes from Section II to Section IV [Conclusion] … there is no section III.

    • harpie says:

      BB: 2:04 PM UTC
      [Chuktan] She is going line by line through the proposed order. She is prepared to rule immediately on some items and then after, she will issue a protective order consistent with today’s rulings ASAP.

    • harpie says:

      BB: 2:22 PM UTC

      Chutkan: But that has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case. The need for this to proceed in normal order and protect witnesses, integrity of process means there are going to be limits on defendant’s speech

      Lauro says Trump can’t be subject to a contempt trap.

      Chutkan cuts: What we’re talking about here are the parameters of this order. What we’re all considering means there are certain things, if they have impact on admin of justice or witnesses, can’t be said regardless…
      Chutkan cont:: of what political activity defendant is engaged in.

    • harpie says:

      BB: 2:41 PM UTC

      Para 3: Defense wants to broaden def of authorized persons to review protected materials, to include not just ppl employed by Trump, but anyone assisting iin any capacity, including attys, paralegals, expert witness advisers etc.

      I am not comfortable with that, Chutkan says […]

    • harpie says:

      BB: 2:55 PM UTC

      Chutkan says Lauro isn’t helping himself. He’s causing her some concern.

      She notes: The former POTUS who is engaged in a political campaign, talking about potential witnesses who may not have the kinds of protection he has – I could see possibility for a lot of problems here.

      There’s going to be arguments on the campaign trail. If one of Trump’s statements overlap into discovery, we suddenly have a problem, Lauro says. Trump shouldn’t have that chill

      Chutkan: He is a criminal defendant. He’s going to have restrictions like every other defendant. [] The fact that the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in any criminal case.

      Lauro: We understand, absolutely, but the order paints too broadly. All we’re asking for is more specificity
      Govt should good cause for why materials are sensitive.

      Chutkan says, I agreed with you. But as to the non-sensitive information, it wouldn’t be covered. But now were’ talking about what can be designated as sensitive and so far, I’m not persuaded by your argument that [] witness interviews and recordings are not covered…

      • bmaz says:

        There are ways to suck up to federal judges and get their confidence. Sometimes it is painful to do, but you do it. Not sure Lauro has that in him.

      • harpie says:

        This is the CORRECTION of the mess I made above. :-/

        Jordan Fisher: 3:02 PM UTC

        JUDGE CHUTKAN says she’s concerned members of the public not bound by the protective order might use sensitive information to intimidate witnesses or otherwise threaten the case, so recordings, reports and transcripts of witness interviews will be designated sensitive.

        Marcy responds:
        https://nitter.net/emptywheel/status/1690016219355578368#m
        Aug 11, 2023 · 3:04 PM UTC

        This is the logic ABJ used in imposing a gag on Roger Stone (after he worked with Enrique Tarrio to threaten her, which Bill Barr treated as a technicality): it’s not what you do, it’s what your deranged followers do.

    • harpie says:

      BB: 3:00 PM UTC

      Chutkan will keep the language in the govt proposed protective order around sensitive materials in place because she says she is concerned about witness intimidation, safety and order.
      Either side can seek a modification later, she notes.

    • harpie says:

      BB: 3:14 PM UTC

      Lauro says their objection is also to not being able to provide a copy to Trump.
      Lauro: if there’s a transcript or video of witness, i want to be able to share it with my client without having to sit in the room with him or someone from my defense team. that becomes impractical
      Lauro: Have the client read transcripts that could be relevant and then coordinate with us.

      (Defense making a lot of promises on Trump’s behalf he has historically had trouble holding up)

      Chutkan: Im inclined to allow the order to say that defense can inspect any notes, would apply whether Trump is accompanied by counsel or other legal staff.. so what’s the harm or prejudice you see arising from him being able to read materials by himself vs with staff

      Windom: The defense has a certain level of trust in defendant that the government does not.

      (Understatement of The Year)

      LOL, Brandi!

      • earlofhuntingdon says:

        Lauro knows Trump is cheap and hates embarrassment worse than not having a McDonald’s. He won’t want to pay for his lawyers to watch him try to read – anything – let alone legal or national security documents, test his comprehension, and then argue over what to do about it.

      • earlofhuntingdon says:

        Lauro virtually begged Chutkan to allow sharing of discovery with “volunteer” lawyers, presumably because his client has so few assets and so little revenue, he couldn’t possibly afford to hire the number of lawyers he will need to deal with 11.6 million pages of discovery! I don’t think she shed too many tears over that one.

        Trump’s claimed assets have never amounted to anything close to his net assets. But he’s wealthy enough to hire as many expensive lawyers as he needs – for each and every case he’s involved in. If he chooses not to do that, it’s on him. Not to mention, there are such things as specialist litigation and discovery management firms that make a living doing this sort of thing, for whom that amount of discovery would not be a big deal.

        In addition to demonstrating how cheap Trump is, the claim says something about how few people Trump wants looking at the material. The world’s smallest violin is going to be playing non-stop.

    • harpie says:

      https://nitter.net/kyledcheney/status/1690025288686542848#m
      Aug 11, 2023 · 3:40 PM UTC

      Quite a close from CHUTKAN:

      “I intend to ensure the orderly adminsitration of justice in this case as I would with any other case. Even arguably ambiguous statements from parties or their counsel … can threaten the process.” (1/2)

      “In addition, the more a party makes inflammatory statements about this case which could taint the jury pool … the greater the urgency will be that we proceed to trial quickly … I will take whatever measures are necessary to safeguard the integrity of these proceedings.

    • harpie says:

      Kyle Cheney has the PROTECTIVE ORDER here:

      https://nitter.net/kyledcheney/status/1690079632366751744#m
      Aug 11, 2023 · 7:15 PM UTC

      BREAKING: We have a protective order in U.S. v. Trump.

      Prosecutors are now expected to begin sharing millions of pages of discovery. [LINK:]

      Here is the language barring Trump from having a phone or other electronics while reviewing sensitive discovery. [49.1] [screenshot]

      Links to: https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.28.0_5.pdf

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