My Sixth Amendment Sense about Jack Smith’s Proposed Book Report
Jack Smith initially filed his proposal on how to release his book report making the case that Trump is not immune from the January 6 charges against him under seal. After getting a first look at it (and the underlying filings), Judge Tanya Chutkan issued this order, unsealing it, and giving Trump very little time to respond to Smith’s proposed redactions in the motion itself, less than five days, with slightly less than two weeks to do redactions on the exhibits themselves.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Why do you give a deadline of mid-day for the initial objections? I would not be surprised to see Trump ask for more time.
I expect Trump to complain about at least one other thing (though let’s be honest; he’s going to complain about all of it).
Smith wants to include the quotes from sensitive material, but not the identity of the people quoted, in the immunity filing itself.
In the Motion’s text, the Government has not redacted quotations or summaries of information from Sensitive Materials, but in the footnotes has redacted citations that reveal the non-public sources of such information, including grand jury transcripts, interview reports, or material obtained through sealed search warrants. In the proposed redacted Appendix, the Government has redacted non-public Sensitive Materials in their entirety. And the Government also has proposed limited redactions to some publicly-available materials, such as the defendant’s Tweets, when such material identifies or targets an individual who—because of their status as a potential witness or involvement in underlying events—may be susceptible to threats or harassment, or may otherwise suffer a chilling effect on their trial testimony.
Trump may have even anticipated this proposal; Trump’s response to Smith’s request for an oversize brief twice raised concerns about confronting witnesses.
The proposed approach is fundamentally unfair, as the Office would attempt to set a closed record for addressing unfiled defense motions by crediting their own untested assessments of purported evidence, denying President Trump an opportunity to confront their witnesses,
[snip]
In this case, including through the Motion, the Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election.
In the hearing on this on September 5, John Lauro similarly emphasized the import of cross-examining witnesses — including immediately before he first raised the election.
They’ve had the ability to subpoena witnesses. They’ve had the ability to take people into the grand jury. They’ve had the ability to interview witnesses.
We’ve not had a full and fair opportunity to cross-examine. So they’re asking for an asymmetrical protocol, where they submit information which we don’t have the ability to cross-examine.
[snip]
These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them.
[snip]
MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —
THE COURT: Ah.
MR. LAURO: — which we can’t ignore, that they’re able to, you know, basically load up on what they think this case is about without our ability to meet those factual assertions with the right to cross-examine. The other issue that’s very problematic here, your Honor, which we’ve not addressed, most of this information is under seal. So if we’re going to go that route, then we’re going to have to have at least some determination among counsel as to what is unsealed and what is not unsealed. If we’re going to go that proffer route, we’re certainly going to put in the record a number of documents which we believe are incredibly exculpatory, which are now currently under seal.
We often forget, Trump’s lawyers have seen all this, in discovery. They’ve been panicked about certain aspects of this case for some time, including the degree to which prosecutors could tie Trump to the crime scene, stuff that would not be remotely official (especially — even if — it involved siccing a mob on his Vice President).
We’ve known for 18 months that groups of rioters focused on Mike Pence — including, according to at least a few cooperating witnesses, the group that has the most obvious ties to Trump, the Proud Boys.
Even John Roberts might balk at the argument that ties between Trump and the militia he riled up at the first debate are protected under the duties of the President.
And — I predict — John Lauro is going to make a Sixth Amendment case that Jack Smith can’t unseal these things.
Judge Chutkan has already made it clear she’s uninterested about Lauro’s arguments about “this sensitive time.” But Lauro has already laid the foundation to make a Sixth Amendment argument about how (and if) this evidence can be made public.
Marcy, since this is a submission for review and not the actual trial…it doesn’t seem to require that witnesses have to be present…. am I off on this?
NAL, but this is my understanding of the sixth amendment as well: it guarantees the right to confront witnesses *at trial* but not necessarily before that.
Otherwise, it could improperly taint the trial proceedings by opening up potential witness tampering and intimidation.
So, yeah, the Confrontation Clause. But isn’t it also in the public interest, since the claim of “witch hunt” has been fire hosed across media for over a year now, that the basis for the indictment be made public? That we all see why it’s not the political hit job Trump and his House cronies claim it to be? The Confrontation Clause is for what happens at trial, not what gets submitted into the docket? Hoping that our experts here weigh in on this.
I have always thought this most hidden information would include evidence of Trump’s communication (probably indirect thru a cut out) to the ‘war room’ at the Willard hotel. That seems explosive.
I’m betting Mark Meadows’ and Rudy’s (a few others are possible) comms are at the core of what you note!
Probably not Rudy since, conveniently, his phone(s) were corrupted.
As Marcy likes to point out in defense of Garland Rudy’s phone was seized on the first day possible. And as I understand it, Meadows does not have a cooperation agreement. Is he para-cooperating? quasi cooperating? Next week my reveal how much of a canary he has been in order to elide incriminating himself.
I’ve always thought this. I think he’s proffered a bunch of J6 info that is exculpatory for him (Meadows) and very bad for Trump, but won’t enter into a cooperation agreement, because he’d be forced to have to answer questions about the documents case, where I think he has significant liability (and/or can implicate other co-conspirators not yet indicted)
DOJ may not yet have enough to charge him in the documents case (remember the burning?), and now given the SC decision, testimony against him by Hutchinson et al, may not be admissable.
If he’s forced to cooperate, he’d have to tell the truth, or risk a 1001 charge and loss of any cooperation agreement.
Vigetnovus, I do remember the document burning as reported by Hutchinson. I also remember the fire in Cheney’s “ceremonial office” as reported by CNN which I later learned was also known as his office. More evidence Marcy is right. DC was the best political infighter in the last 50 years.
Someone told Rudy he could click three times to delete all messages…
I think you may be right. What went on in the Willard Hotel “war room”, including who was there and whether the occupants of the room were in real time contact with Trump, are two of the biggest unanswered questions from January 6th, 2021.
Pennsylvania v. Ritchie, a 1987 United States Supreme Court case holds that the Sixth Amendment’s Confrontation Clause applies only to trial, and not to pre-trial matters, in general. This probably precludes such a claim here. But even if there is a Confrontation Clause right concerning pre-trial immunity issues, a public hearing where Trump’s lawyers can ask questions of witnesses is probably the last thing Trump actually wants. Judge Chutkan might even call Trump’s lawyers out on this so as to harm their appellate claims. For example she could simply ask them if they want to cross-examine Mike Pence and others in a hearing in October.
Thanks for mentioning that…for someone who’s not in the field, it’s a lot to learn about, but I just gave this a quick look, and got a general idea of what was at stake:
https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/
From the SCOTUS ruling:
AS: Judge Chutkan might even call Trump’s lawyers out on this so as to harm their appellate claims. For example she could simply ask them if they want to cross-examine Mike Pence and others in a hearing in October.
I hope Chutkan does this.
Insofar as this hearing is about admissibility of evidence in the future trial, it is against the background of the claims of immunity ie that there is a presumption that some or all the proposed evidence is not admissible unless the prosecution proves that it is not barred by the proper application of the immunity principles.
Trump v US did not articulate a standard of proof, but my WAG is that SCOTUS will create a problem down the line if the proof beyond reasonable doubt standard is not applied.
Given that perspective, it seems inconceivable to me that the “future proceedings” that Chutkan had contemplated in her original scheduling order did not include the possibility of live witness evidence in order to fully explore the full context for intensely fact bound determinations she is called upon to make in respect of several conversations.
This set of circumstance distinguishes Richie which clearly had a concern to protect the public interest in maintaining “confidentiality of those involved in child-abuse investigations”. Here the public interest value is otherwise, and can be protected in a different way. SCOTUS would no doubt regard the highest public interest is in protecting the confidentiality of communications between the President and members of the executive branch. I would think that Trump will want to place each piece of the evidence the SC now proposes to rely on in contexts which explain each of it as an official acts and which ought to be treated as confidential unless and until proven otherwise.
This gives rise to 2 thoughts.
1 Trump will be permitted to cross examine witnesses, to have the chance to refute the prosecutions claims
2 Trump will argue that significant portions of the proceedings before Chutkan should remain underseal and or in camera until she ultimately rules on the matter.
EW’s September 3 Post has FINALLY been picked up by the NYT:
“Trump Gave Them a Second Chance. They Could Not Stay Out of Trouble.” NYT 9/28/2024
There’s hope yet!
The thought occurred to me that the Proud Boys should stop being referred to as a militia which connotes and confers some degree of legitimacy, however semantic or pedantic that seems. What they were and are is a gang, engaged in criminal behavior for which many of their members were convicted in a court of law.
Proud Boys in particular wear colors like a street gang, even referred to not wearing their colors at one point to blend in with the normies.
Use of the label militia also implies a defense with regard to gun possession.
Agreed. To most laypeople the only context to the word militia comes from the Second Amendment, problematically. Even after the 90s-spawned militia movement!
Whereas the Proud Boys are far more akin to the Mongols, the Hells Angels, perhaps the Crips, Bloods, or Latin Kings in their organizational structure and activities than even, perhaps, the 3 Percenters or the Oath Keepers (though those organizations are definitely criminal conspiracies too!). And definitely nothing like those militias to which the 2nd refers.
Canada’s terrorist entities list, with a description of each entity:
https://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/lstd-ntts/crrnt-lstd-ntts-en.aspx
Not to mention that ‘well-regulated militia’ is specifically called out in 2nd Amendment.
And thus the defense that Rayne refers to above.
Proud Boys also aligned themselves with a very powerful political figure and became exploited by him……brings to mind the Brown Shirts and Hitler.
To your point, Just Some Guy, notice the word “Gang” below:
“This case was prosecuted by the U.S. Attorney’s Office for the District of Columbia, the Department of Justice National Security Division’s Counterterrorism Section, and the Department of Justice Criminal Division’s Organized Crime and Gang Section.”
https://www.justice.gov/usao-dc/pr/proud-boys-leader-sentenced-22-years-prison-seditious-conspiracy-and-other-charges
“District of Columbia | Proud Boys Leader Sentenced to 22 Years in Prison on Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach | United States Department of Justice” – 9/5/23
Trump Lawyers: In support of President Trump’s Sixth Amendment rights, we move pre-trial to confront the Government’s witnesses, and to call our own. The Court needs this process to make informed decisions on core, official, and non-official acts.
Chutkan: Who do you plan to call?
Lawyers: We have yet to work that out. In addition, we need time to work out the lines of questioning. We propose January 21 to begin calling witnesses.
Chutkan: You have two weeks.
Lawyers: What?!? Unfair! That’s too close to Halloween!
Lauro’s complaint about the process being asymmetrical is an interesting one, because it overlooks the fact that pretrial proceedings in criminal cases are by their nature always asymmetrical — but the asymmetries have a way of balancing each other out. Unlike a civil case, where the parties both have pretrial discovery to probe each others’ witnesses, and both have the opportunity to seek relief by the court rather than a jury — through summary judgment, for example — i a criminal case the prosecution has a one-sided advantage in asserting the case, but the defense has a one-sided advantage in dismissing it. If the prosecution alleges the elements of a crime, the defense can only challenge the sufficiency of the allegations, and must wait until trial to attack the evidence and seek a not guilty verdict. That is an asymmetry favoring the prosecution. On the other hand, the defense has its own advantage in that it can ask the judge to rule in its favor and dismiss the case, while the prosecution can only win by going through a jury trial. Lauro can get the case dismissed against Trump by filing a motion, but the prosecution can only win by going through the entire trial process. This is why the defense usually is limited in what use it can make of evidence, cross-examination, and the like before trial. In Monopoly terms, Trump can snag a “get out of jail” card, but Smith can never draw a “go directly to jail” one.
Helpful hint: long blocks of text are difficult to read on the internet, especially on smaller mobile device screens. You’ve got 251 words here which could have used one or two paragraph breaks for improved readability.
Signed, your friendly neighborhood moderator
Good to know!
Thanks very much, all of you, for this post & ensuing comments – it’s one of those posts+ that reminds this zero-legal-trained person why I’m signed up for Emptywheel.
All, thanks for the points about Sixth Amendment.
I posted this and then walked 6 miles (as it happens) to buy a daikon.
The question is not so much legal merit, as I see it. It’s whether Lauro can make a big stink about it. I mean, we all thought his immunity challenge had no legal merit but by making a big stink he rewrote the Constitution.
what? you walked six miles on that foot? yay!
Dashing out for Daikon
Means six miles for Mooli
In Munster
Six miles for a radish?
Try getting some Korean pickled daikon (vivid yellow). Sliced thin as a side dish, it is supremely crunchy and tasty. Goes especially well with jajjang noodles and sauce.
Fee, Fum, Foe, Fie
More than an apple of my eye:
All the MAGAs baked in a pie,
standing back & standing by,
answered my calling and let it fly.
If I told them “do or die”,
they’d not ask once or reason why,
I set their vengeance so damn high,
they let loose their battle cry.
I just had to give them my
Fee, fum, foe, fie,
together with Trump’s Big Lie,
‘cause MAGA mobsters are not shy.
Back made a stand & so did by,
I hardly even had to try,
because I’m just that kind of guy,
Fee, fum, foe, fie.
Shiny
Perhaps not a perfect analogy, and perhaps already mentioned before, but is not Trump’s team complaining that the government could in essence ‘spin’ (in the court of public opinion) their evidence, in the same way that Barr spun the Mueller report before it was released publicly?
Rich.
Of course, and given that Trump could pardon himself once elected, objecting to the prosecution’s publicly spinning the evidence is a valid strategy. Trump has to suppress the news in order to win the election and put himself in a position to pardon himself.
Garden variety spin from a master of spin and projection. Trump is relentless in blaming others for the bits of reality that do not elevate him to Roman godhood. That should be part of the story in a great deal of coverage about Trump.
I often wonder whether his deviancy and delusions of divinity come from some hermetically sealed delusion that his godhood was always something destined to be revealed or if it is rooted in having grown up (if he can be said to have done so) in the painful space of having been a distant-second to the anointed Number One, and who later found himself the object of his father’s withering attention and “love” when Number One failed out. I tend to think he cannot shake the certain knowledge that his father had always thought of him as a troublesome loser until he had no choice but to somehow remake him into a winner.
Hundreds of millions of dollars have enabled Trump to thrust his personal pathologies, whatever their origins, onto our politics to be played out on the global stage. Divinity in Rome was initially able to encompass Caesars elevating themselves to godhood when they became rich and powerful enough to do it, but the devalued Roman pantheon would eventually give way to a monotheism decreed by Caesar but not worshipping him. Trump’s shabby attempt at godhood is the latest stanza in History’s rhyming doggerel and an old joke we just can’t stop telling ourselves.
https://bulletin.hds.harvard.edu/at-trumps-right-hand/
Are you saying all these people are deluded? That reminds me: did Paula White ever dispatch those angels from Africa?
I am still waiting for this:
The Apocolocyntosis (divi) Trumpii, literally The Pumpkinification of (the Divine) Donald, a satire on the American presidental candidate Donald John Trump, remains to be written. However, numerous commentators have noted that he has become increasingly orange in the last two decades.
My current health issues prevent me from completing this by myself, so I hope to inspire others to satirize the Orange Anus.
Any takers?
Listen,
(woo-ooh-ooh)
please don’t let them know my secrets
(woo-ooh-ooh)
promise me that they won’t know
((whoa-oh-oh)
Closer
(woo-ooh-ooh)
I’ll keep it safe in Mar-a-Lago
(woo-ooh-ooh)
the only ears that might will hear
are Vladimir Putin’s
I wanna hold your… trial?
It seems like a better argument to make would be that they don’t want to taint the jury pool. Unless the lawyers are just throwing stuff at the wall on their client’s orders.
Probable, bordering on likely.
They’re throwing stuff at the wall, hoping to taint the jury pool.
“Even John Roberts might balk at the argument that ties between Trump and the militia he riled up at the first debate are protected under the duties of the President”
You’re such a joker. I assume old “Balls and Strikes” would use the precedent that Trump is authorized to shoot someone on Fifth Avenue and DC is simply a change of venue.
There’s that SC shitty immunity bullshit – but does it mean immunity from the public seeing what’s on the legal menu on Trump? I don’t think so. :-)
I mean, isn’t it all getting a tad too precious, like stretched beyond the norms, for what? A guy who isn’t a sitting president at the moment, and just a citizen running for President? Never stopped anyone from dishing whatever is on offer, and yes I do realise it’s a legal process, but nevertheless he’s still just a candidate.
If particular pieces of evidence are ultimately ruled to be inadmissible for the upcoming trial, ie they have no probative value on the question of guilt on the particular charge, what is the legitimate public interest or administration of justice interest in exposing the potentially prejudicial information to the public gaze before its legitimacy as evidence is determined?
It is of course an important consideration that the public should be able to see and understand how and why a Judge has reached particular conclusions, but what is wrong in principle to embargoing release of the some of the relevant but confidential details until the ruling? And even then making a determination as to whether certain things should remain confidential because of competing public interest concerns?
Ps That was intended to articulate a principled legal framework for Trump’s arguments to delay publication of material he would prefer the public not to see. It wasn’t intended to convey how I think Chutkan should or will approach the matter.
Correct me if I’m wrong, but wouldn’t that line of argument from the Defense require the implicit assumption on the defendant’s part that there are any behaviors whatsoever not covered by what Trump’s team, so far, has characterized as universal immunity (despite the actual language of the ruling)?
BRUCE F COLE
September 29, 2024 at 7:39 pm
They could/should argue both in the alternative, especially since the immediate purpose is to keep as much under seal and out of the public gaze for as long as possible
Can’t Chutkan somehow invoke the Hemingway rule “The most essential gift for a good writer is a built in, shockproof, shit detector.”
Replace the words “good writer” with “good judge”.
It has been nearly four years since the insurrection, the voters deserve to enjoy the “rights of a fucking speedy trial.”
Pretty sure Chutkan’s detector is already foolproof.
“They’re always moving the bar…”
SC Smith wants to try the alleged culprit and get a conviction.
CFTFG wants to engage a legal process while also keeping evidence from the public, and, especially, he wants the whole thing to go away.
Seems to me there is a gray area between the two where the defendant might trigger a set trap he set himself.
The attorneys for the former President won their interlocutory appeal. The trial, and confrontation of the evidence is therefore postponed. But now they have created the substantial chance that the evidence will become public as the trial court prepares for the second appeal. Will the courts accept a second pre trial appeal?
I don’t think the Special Counsel is trying to win the case, or win the motion as much as keep the pressure on the Republican nominee and raise the stakes of the election,
From DOJ ORDER NO. 5559-2022: APPOINTMENT OF JOHN L. SMITH AS SPECIAL COUNSEL:
If, as you suggest, the SC is not “trying to trying to win the case, or win the motion as much as keep the pressure on the Republican nominee and raise the stakes of the election,” then he is simply not doing the job to which he was assigned.
I left out, “at this point”. Smith knows there is going to be another appeal, if VP Harris wins the Presidential election.
OT, way, still…
Surprising neither press nor Harris ever mentions Trump’s meeting with Lavrov and Kislyak when Trump speaks at all about Russia and Ukraine.
That photo of them all laughing in the Whitehouse ( surely them at him) still pisses me off.
Too late to make hay from it ?
I’m not a lawyer. But I’ll admit I laughed out loud when reading footnote 1 at the bottom of pages 7-8 in this unsealed filing from SCO.
It contrasts the applicable legal standards “for sealing and redactions” in this case, with the Trump-stolen-classified-documents case in Florida that was dismissed a few months ago by Judge Aileen Cannon. The footnote mentions one of Cannon’s rulings in that case (which emptywheel described as a “surly order” at the time):
ECF 438 was the order where Cannon backed down. The Gov’t Motion for Reconsideration it was responding to, ECF 294 was filed 2 months earlier and included some sharp jabs such as this one:
Anyway, I just found it hilarious that the gov’t had an opportunity to cite Cannon’s prickly ruling in support of their current objective in a different Trump case.
CHUTKAN:
That’s 2 hours from now.
Is this filed yet? I haven’t seen anyone say anything about it.
Cosmo Lecat: I am NOT releasing a copyright-violating extract of CNN’s reporting
Either reduce the content to a 100-word excerpt or summarize it.
from CNN, edited:
In a court filing Tuesday, Trump opposes the public disclosure of some of details in the still-sealed brief, claiming in Tuesday’s court filing that the “true motivation driving the efforts by the Special Counsel’s Office to disseminate witness statements that they previously sought to lock down is as obvious as it is inappropriate.”
Trump is calling for redactions to “titles and positions held by the witnesses who are not specifically named in the Superseding Indictment.”