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.
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.
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