I, Too, Got Hoodwinked by Donald Trump’s Demands to Be Tried Like a Seditionist

/60 Comments/in /by

I’m about to write a post about what, per the DOJ, the discovery in Trump January 6 case is like.

But first, I have to confess.

When I read Trump’s own pitch for a trial in 2026, I missed one of his more clever deceits. It’s this one:

Indeed, the median time from commencement to termination for a jury-tried § 371 charge is 29.4 months—many times longer than the government’s proposal schedule. 12 (And this reflects only the median, meaning half of all such cases take more time based on individualized assessments of discovery volume, complexity, and similar concerns.)

12 Administrative Office of the United States Courts, Table D-10: U.S. District Courts–Median Time Intervals From Commencement to Termination for Criminal Defendants Disposed of, by Offense, During the 12-Month Period Ending September 30, 2022, at 2, jb_d10_0930.2022.pdf (uscourts.gov). [my emphasis]

To be sure, I should have been alerted to the deceit by this paragraph, in the same section.

Likewise, this Court regularly allows far more time than the government proposes, even in cases involving protests at the Capitol on January 6, 2021. See, e.g., United States v. Foy, No. 21- cr-0108 (28 months from indictment to stipulated bench trial on 4-page indictment); United States v. Nordean, et al, No. 21-cr-0175 (TJK) (21 months); United States v. Crowl, et al, No. 21-cr-0028 (APM) (23 months); United States v. Kuehne, et al, Case No. 21-cr-160 (29 months); United States v. Hostetter, et al, Case No. 21-cr-0392 (RCL) (24 months). [my emphasis]

Trump was calling now-convicted seditionists — and other militia members accused of attacking our democracy — “protestors”!!!!

My only excuse is that I read it in the middle of the night and figured I’d deal with it–as I intend to–once the government replied, which they now have.

One reason I’m so angry that I didn’t see this particular lie, though, is because I’ve pointed out what a blindspot this is among TV lawyers and insipid NYT columnists who like to blather about the investigation taking too long.

Everything got held up by COVID, not just the January 6 investigation. The first felony trial for Jan6ers was delayed until March 2022, partly because of COVID backlogs, and partly because of discovery challenges.

Only after that did Trump stall everything with frivolous Executive Privilege claims in the wake of SCOTUS upholding Judge Chutkan’s own ruling on the topic (another complaint Trump raised in his motion almost no one called out).

It turns out, as DOJ explained in a filing today, that Donald Trump was using the delays in the January 6 investigation necessitated by COVID to claim he shouldn’t be tried for January 6 until he gets a shot at being President again.

The defendant’s references to Section 371 statistics and January 6th cases overlook important underlying facts and context. See ECF No. 30 at 12. First, the defendant cites the median time from commencement to termination for jury trials of Section 371 charges—29.4 months—without explaining that this median time runs through the completion of sentencing, not the beginning of trial. That means that it includes the time required for jury selection, trial, verdict, and several months (or more) afterward before sentencing and final judgment. See https://www.uscourts.gov/sites/default/files/data_tables/jb_d10_0930.2022.pdf. The question here is when it is appropriate to start trial in this case, and statistics regarding the length of time from indictment to sentencing in other Section 371 cases have no bearing on that decision

Second, the data cited by the defendant spans October 2021 through September 2022, when federal courts were pulling out of a backlog caused by COVID-19 closures. During that period, only 22 cases went to trial nationwide. This small and skewed sample provides no help to the Court in deciding an appropriate trial date.

The defendant’s listed January 6th cases also omit important details and context. He fails to mention, for instance, that in one case he cites, disposition was delayed because of, among other reasons, litigation over pre-trial detention, a superseding indictment, and plea negotiations. See United States v. Foy, 21-cr-108, ECF No. 55, Superseding Indictment (11/10/21); 2/7/22 Minute Entry (setting jury trial for 9/19/22); ECF No. 67, Defendant’s Unopposed Motion to Vacate Trial Date (for, among other reasons, plea negotiations). All of the defendant’s other cited cases included multiple co-defendants—as many as seventeen. See United States v. Crowl, et al., 21- cr-28 at ECF No. 328, Fifth Superseding Indictment. The Court should set these inapposite comparisons aside when weighing the individual factors here under the Speedy Trial Act.

Trump was cherry picking data skewed by the catastrophe that might have been mitigated had his own COVID response been less irresponsible. He was cherry picking from among the other January 6 defendants (some adjudged seditionists), some of whose trials established precedents for his own.

Donald Trump argued that his trial, all by himself, should take as long as the Proud Boy leaders and other charged militia defendants, even without the COVID delays. He’s demanding that his trial take as long as it could if Jack Smith chose to try him for the whole kit and kaboodle, in which he might be guilty, but of which he is not yet charged.

And I fell for it.

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60 replies
  1. Terduken says:

    It’s not Slipped, Tripped and fell in MAGA. Everyone gets a little MAGA on their shoes nowadays.

      • Terduken says:

        The first time I heard it was via Foghat. Spot ify has allowed for versioning of songs through the years. I enjoy listening to multiple interpretations of music while not being very curious about all the Canadian Geese MAGA I get on my shoes. 18 holes and I never notice until getting in the vehicle home.

    • greg_21AUG2023_2237h says:

      REPUGGIANS have been deep in MAGA since Reagan, – lying about everything while doing exactly what they would accuse everyone else of actually doing….

      They were using Nazi name calling even back then as a normal way of propaganda, and painting the opposition. And folks let them get away with it.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short and too common (there are many community members named “Greg” here) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

  3. LeeNLP149 says:

    “My only excuse is that I read it in the middle of the night … ”

    I normally try to keep quiet here most of the time, but here I must- MUST – speak up in objection. You missed a detail that everyone else missed at the time, and are the first to see it now after the government has finally spoken up, and you feel the need to apologize for being less than super-human? For shame, Dr. Wheeler, for shame!

    BTW, thanks again for the amazing work you and all the other EW-ers do. I keep telling myself that when my ship comes in (no word yet..) I will increase my paltry monthly contribution a hundred fold. And I mostly believe myself. :)

    • ToldainDarkwater says:

      It is my personal belief that openly admitting to mistakes I have made is part of a process that ensures very high quality results and constant improvement. I certainly try to hold myself to that. It looks like Dr. Wheeler does too.

  4. Mycotropic says:

    Also mean vs median is often interesting,. let’s have the mean, median, standard deviation and standard error trump you manipulative sob.

        • Susan D Einbinder says:

          It’s unhelpful to just report the median, too, unless they also provide the mean and mode and standard deviation. The median’s just the middle score when the scores are lined up from smallest to largest – and unless the distribution is (statistical) normal, the mean, the median and mode are different. So the lawyers are bad at lying with statistics, too. Go figure.

        • elcajon64 says:

          One of the most enlightening courses or seminars I’ve taken was when I began working for McClatchy (The Sacramento Bee). They taught “mathematics for journalists” to any employee who wanted the training. It covered all of the above plus the concepts of constant dollars, inflation adjustments, and a few others. Indispensable.

        • c-i-v-i-l says:

          It’s possible for the mean, median, and mode to be the same even if one doesn’t have a normal distribution. Also, they didn’t give the mean, mode, or S.D. because the document they took the stat from only provides the median.

    • Jim Luther says:

      IMHO, one of the reasons that Trump communicates so effectively with his supporters, and those supporters are so bound to him, is that Trump recognizes that about half of Americans read/write/speak at the 6th grade level or lower. Telling them that the median is different from the mean, or even using the word mean (not average) is considered condescending. Not sure if it is on purpose, or Trump is simply part of that 50% that operates at the 6th grade level.

      • Ralf Maximus says:

        Definitely on purpose, and definitely he’s operating at somewhat less than a 6th grade reading level.

        Also: he repeats things. Often whole sentence fragments, sometimes within the same run-on sentence. This is a powerful oration technique that helps listeners remember the points you want them to remember.

  5. LeeNLP149 says:

    “Donald Trump argued that his trial, all by himself, should take as long as the Proud Boy leaders and other charged militia defendants, even without the COVID delays.”

    Of course, he only gets the best, longest, most grueling trials. That said, I will shut up for the rest of this thread. Thanks again for the amazing work, Dr. Wheeler et al!

  6. Konny_2022 says:

    Thanks for this post. I, too, have to admit that I forget about the impediments caused by Covid all to often by now.

    However, I think the first point of Government’s reply deserves to be quoted as well since it makes clear that there was another deceit in Trump’s invocation of statistics:

    First, the defendant cites the median time from commencement to termination for jury trials of Section 371 charges—29.4 months—without explaining that this median time runs through the completion of sentencing, not the beginning of trial. That means that it includes the time required for jury selection, trial, verdict, and several months (or more) afterward before sentencing and final judgment. See https://www.uscourts.gov/sites/default/files/data_tables/jb_d10_0930.2022.pdf. The question here is when it is appropriate to start trial in this case, and statistics regarding the length of time from indictment to sentencing in other Section 371 cases have no bearing on that decision.

    Trump’s use of the median of the duration from indictment to not only verdict but sentencing is definitely misleading as only the time between indictment and the beginning of jury selection matters here.

    • Ruthie2the says:

      IANAL, but I fail to see why the length of related trials, whether described as median, average or mean, has any more relevance to setting a date for the start of a trial than the length of time from indictment until sentencing. Isn’t the start date the only relevant metric?

      • Konny_2022 says:

        “Isn’t the start date the only relevant metric?”

        No, it’s the start date and the end date of the period the length of which is calculated. The period covered in the federal court statistics starts with indictment and ends with the completion of sentencing, hence adding up (1) the period from indictment to trial (= pretrial), (2) the trial period itself (from jury selection to verdict), and (3) the period from verdict (if not an aquittal) to sentencing.

        The Government points to that only period (1) is of interest at the moment whereas Trump’s lawyers argue with the sum of periods (1), (2) and (3). Government doesn’t criticize the use of the median as the statistical value.

        Maybe I should have emphasized “without explaining that this median time runs through the completion of sentencing, not the beginning of trial” in the quote. I’m sorry.

        • Ruthie2the says:

          “The Government points to that only period (1) is of interest at the moment”

          I guess it’s obvious I didn’t read the Government’s motion, either that or I missed it in the excerpts above, but that was the point I was trying to make. How long the trials took once they began, whether you’re talking about just the trial itself or the sentencing phase, is irrelevant to setting a start date. It’s a very obvious red herring.

        • Konny_2022 says:

          You are absolutely right with the red herring. Trump’s lawyers even explain the median in a way as if they were generous using this statistical value (p. 12 on
          https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.30.0_4.pdf):

          As explained above, the normal course for complex, document-intensive cases is not a rush to trial, but a measured schedule that preserves the defendant’s rights to review discovery and raise appropriate motions with the Court.

          Indeed, the median time from commencement to termination for a jury-tried § 371 charge is 29.4 months—many times longer than the government’s proposal schedule.12 (And this reflects only the median, meaning half of all such cases take more time based on individualized assessments of discovery volume, complexity, and similar concerns.) [Emphasis is mine.]

          They mention only “discovery volume, complexity, and similar concerns” as factors contributing to the length of court cases, not, e.g., the length of the trial itself and the interim between verdict and sentencing — or, for that matter, the number of indictees.

  7. Christy Hardin Smith says:

    The fact that his own defense lawyers use the framing “compare our trial needs to other fellow seditionists” does make me giggle just a little bit as one of the bigger self-owns that they have done in a while in this process. Also, you have to appreciate the bluntness of the Jack Smith team’s lack of patience with this as a delay tactic. Here’s hoping Judge Chutkan feels the same way about “stall and stall again” as a legal strategy.

  8. Lance Peeples says:

    Since tRump could, by his own claim, resolve Russia’s war on Ukraine in 24 hours, then his own trial can’t be much more complicated. I say give it a week tops.

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. “Lance Peeples” is your second user name; you’ve commented previously as “chuckfeney.” Pick a unique username with a minimum of 8 letters and use it along with the same email address each time you comment. Thanks. /~Rayne]

    • bmaz says:

      I’m sorry, who is “tRump”? Do you think that is cute? Because it really is not, and is only stupid and tiring.

  9. The Dark Avenger says:

    I love to make a mistake, it is my only assurance that I cannot reasonably be expected to assume the burden of omniscience.

    Rex Stout

  10. Unabogie says:

    Ok, this is delicious. No notes.

    The defendant contends that the Government’s proposed trial schedule conflicts with other
    cases in which he is a civil or criminal defendant. The Government is confident that the Court
    can and will, in this case as in any other, consider the parties’ proposals and its own calendar and
    navigate around true conflicts. For example, the defense points out that the Government’s
    proposal to start jury selection on December 11, 2023, conflicts with a motions hearing in his
    criminal case in the Southern District of Florida. Such true conflicts are easily addressed—the
    Government now proposes instead that jury selection begin later during the week of December 11
    to accommodate the hearing date in the Florida case.

    • Unabogie says:

      “Your Honor, it’s not our fault that Trump will be a party to other criminal cases and also civil cases. But we’re reasonable, so I’m sure we can fit them all in ;-)”

      • Spencer Dawkins says:

        “We’re sure *you* can fit them in” 😎

        I was honestly disappointed that the counterproposal for December 11 wasn’t to move the start date for jury selection earlier in December. It’s better that actual adults are responding to Trump’s lawyers, and not me …

        • Legonaut says:

          Yeah, if I were judge, I’d whack a week off the calendar every time they squawked until they got the message & stopped. Pretty sure we’d blow through Thanksgiving and Halloween.

          “How does they day after Labor Day 2023 work for you? So ordered.”

          Sigh. Like you said — just as well.

    • earlofhuntingdon says:

      Of course, Trump’s lawyers in Florida argue that the Feds elsewhere should be reined in and not allowed to prosecute other crimes unless and until Judge Cannon gets round to doing whatever she’s gonna do. Not that she has any authority over a grand jury, judge or prosecutor in another district. But the argument appeals to her ego, while Trump’s lawyers play one judge/proceeding against the others.

      The problem is the scale of Trump’s criming, not the prosecution of it. Smith is making a sane, neutral argument that the federal courts are capable of negotiating their way around a few scheduling conflicts, while keeping the administration of justice moving full steam ahead.

  12. soundgood2 says:

    Could Judge Chutkan give Trump a choice between going to jail if he violates her order or moving the trial date up?

    • earlofhuntingdon says:

      Confinement in jail? Not a practical risk until post-conviction. But there are other things federal judges can do to serially recalcitrant defendants.

      • BobBobCon says:

        I actually wonder what the odds are that he genuinely earns confinement in the next 15 months.

        My first instinct is always that there is a 0% chance that he crosses that line.

        But there’s no avoiding the fact that he launched the January 6 plot. He could do something just as nuts. He really could.

        • P J Evans says:

          He’s certainly trying to get there. Talking about flying to Russia and living under a golden dome, sharing it with Vladimir…who certainly won’t be the person he’s thinking of.

      • soundgood2 says:

        I was thinking that if he complains that moving up the trial date is infringing on his rights, she could offer to confine him instead and that might get him to actually shut up. Also, it occurs to me that he might not be as unable to control himself as is the conventional wisdom. There are a lot of stories about his temper, screaming profanities at people and throwing things when angry, however, he has never, to my knowledge, exhibited this in public, so he is able to control himself when he needs to.

    • David F. Snyder says:

      From the Legal Information Institute (Cornell):

      Criminal contempt of court refers to disobedience of an order of the court which carries criminal penalties. Common examples of conduct which may result in criminal contempt of court charges include insulting the judge or creating a disturbance at trial. Penalties for criminal contempt include fines and potential jail time.

      Like civil contempt of court charges, criminal contempt of court is separated into indirect contempt and direct contempt.

      Direct contempt of court is based on conduct that occurs during a court proceeding.
      Indirect contempt of court is based on violation of a court order demanding certain conduct outside of the courtroom.

      More at:
      https://www.law.cornell.edu/wex/contempt_of_court_criminal

  15. David F. Snyder says:

    Good on you, Marcy, for fessing up. But, hey, Trump has probably conned everyone at some point once. ¯\_(ツ)_/¯ “The worst mistake is to not learn from one’s mistakes.”

    In any event, the SC team caught it. Thanks for your insights, you’re a oner!

  16. ThomasPaine says:

    The possibility of contempt in any of FOUR criminal cases with Trump is certain. Three of these Judges are not beholden to Trump for their appointments and so would be expected to impose discipline if Trump’s threats to “witnesses” and “victims” or other behavior becomes so egregious that it can’t be ignored.

    While forced confinement seems inconceivable for a former POTUS, if somebody he has threatened gets hurt by one of his “listless vessels”, how can a Judge NOT constrain Trump’s speech or unlawful behavior.

    My guess is he gets busted first in GA, given the specificity of the release conditions outlined in his release deal. How much money and freedom he is forced to surrender is the big mystery. Bring the popcorn.

  17. punaise says:

    HoodWynked, Blynked, and Awed one night
      Sailed off in a wooden shoe,—
    Sailed on a river of crystal light
      Into a 302
    “Where are you going, and what do you wish?”
      The old judge asked the three.
    “We have come to fish for the RICO-fish
      That live in this beautiful sea;
      Nets of silver and gold have we,”
      Said HoodWynked, Blynked, and Awed

      • punaise says:

        I can only guess that some small percentage of the commenting public knows what the heck this was about!

        For some reason it’s in my memory banks, in our family lore – my future parents, while students at Cal in the late 1940s, went out on the town for Halloween dressed as Wynken, Blynken and Nod. Not quire sure they pulled that off.

        • Ginevra diBenci says:

          My family’s too, punaise! We have so much junk like that, most unrecognizable to anyone sane.

  18. Frank Anon says:

    I wonder who comes up with these delaying strategies. Is it Trump himself? No matter the string of attorneys or type of case, there are always novel delay tactics. I am endlessly curious what goes in in the rooms where strategies like these are discussed

  19. Matt Foley says:

    What’s the median time for ex-POTUSes conceding elections they lost?

    I am so sick and tired of this lying rapist racketeer and the havoc he creates.

Comments are closed.