The Former President’s Spaghetti-Wall Assault on the Truth

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Donald Trump’s team has submitted its reply briefs on motions to dismiss:

I reiterate the analysis I have made here and here: these motions (plus the Motion to Strike that Judge Chutkan already rejected), taken together, don’t so much attempt to argue about Trump’s conduct. Instead, they try to separate out the conspiracies alleged and the mob that was central to it from a claim that Trump has a right to lie, a right to repeat false claims about the 2020 election no matter how many times those false claims have been debunked in court.

Trump made no effort to address certain key claims. As one example, Trump didn’t mention prosecutors’ observation that Trump couldn’t have a Double Jeopardy claim from Impeachment given that this indictment does not charge him with what Congress did, incitement.

Perhaps recognizing what I pointed out here — that Trump had simply ignored the way in which he used the mob to obstruct the vote certification, he includes a new section in it. But it was lifted from his reply brief on the Motion to Strike that already failed.

January 6.

The prosecution next repeats its false claim that President Trump “directed a large crowd of supporters, whom he knew to be ‘angry’ based on his election fraud lies, to go to the Capitol and obstruct the proceeding.” Doc. 139, at 19. But the indictment does not charge President Trump with any responsibility for the events of January 6, and rightly so. As set forth in detail in Doc. 156, President Trump encouraged the crowd marching to the Capitol to “peacefully and patriotically make your voices heard” and to “cheer on our brave senators and congressmen and women.”6 President Trump made clear that he expected to watch the electoral certification proceedings take place as planned that day. Id. And President Trump repeatedly denounced destruction of monuments and other symbols of American democracy, and he reminded the crowd that criminal penalties he signed into law for such actions. Id.

As the indictment itself alleges, the crowd gathered at the Capitol before President Trump finished speaking. Doc. 1, ¶ 107. The crowd already at the Capitol “broke through barriers cordoning off the Capitol grounds and advanced on the building” while President Trump was speaking. See id. The indictment does not mention that the 1,200 people who entered the Capitol was less than 1% the size of the crowd gathered to listen to President Trump, and that at least 99% of the crowd gathered to listen to President Trump did not enter the Capitol. William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec 23, 2021), https://www.newsweek.com/exclusive-classified-documents-reveal-number-january6-protestors-1661296. 7

And having belatedly attempted to address the mob, Trump nevertheless shamelessly claimed that the people he lied to were sophisticated enough to see through his lies.

President’s Trump’s listeners—including the sophisticated elected officials described in the indictment—were free to agree or disagree with President Trump’s views, and the prosecution does not allege otherwise.

Hundreds of January 6 defendants — conservatively — have explained that they pissed away their lives that day because they believed Trump’s lies. Trump’s reply briefs effectively amount to the argument that his First Amendment rights extend to being completely unmoored from any anchor to the truth, his First Amendment rights permit him to deliberately unmoor the truth to mobilize an attack on the country.

Perhaps unsurprisingly, I came away from a quick read of these filings exhausted, the exhaustion deliberately cultivated by the gaslighter. I could — I still might — go back and unpack every one of the gimmicks his attorneys have thrown at Judge Chutkan, like spaghetti at a wall. But ultimately it amounts to a demand that Trump be treated not just as above the law that the hundreds of his mobsters have already been held accountable to, but also above the truth.

DC Circuit Likely To Narrow Judge Chutkan Gag

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Ruby Freeman was not a public figure until Donald Trump and Rudy Giuliani made her one, until they turned her into the villain of their feverish conspiracy theories about black women and voting. But early on in the appellate hearing on Judge Tanya Chutkan’s gag in the January 6 trial, Trump’s attorney John Sauer claimed there were no people covered by the gag who were not public persons.

That will become important if, as I suspect, the DC Circuit panel of Patricia Millett, Cornelia Pillard, and Bradley Garcia, upholds Judge Chutkan’s gag, but narrows it with regards to public persons. I suspect the court will throw out the gag on Trump comments about prosecutors (but not their family), limit the gag about public people like Mark Milley and Mike Pence to specifics about this trial, but adopt the gag as is for non-public people like Freeman.

Then we’ll have a fight about who counts as a public figure or not.

The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client. The judges, especially Millett, asked him a series of hypotheticals to try to get him to lay out a standard that wouldn’t fall astray of the First Amendment. And Sauer kept getting cornered saying, basically, only the clear harm standard could apply to a gag on his client’s speech. Effectively, he was saying that Trump has to be criminally charged with witness tampering rather than gagged. At one point, Sauer suggested that Trump must be permitted to wage this case in the public sphere, that there can be no consideration for the public interest in a fair trial. In another, he got awfully close to arguing that Trump should be treated as a stranger to this case, meaning no restrictions could be imposed, rather than the accused defendant. In a third, Sauer suggested that Trump must be permitted to run for election on a campaign of threats against his adversaries. Over and over, Sauer argued that Trump should be permitted to say things publicly — at campaign rallies or on his failing Social Media site — that Sauer he agreed would be prohibited under the gag order if he did it on the phone with a witness.

I doubt this will be a winning argument before the DC Circuit. But Sauer is really making a play for Clarence Thomas and Sam Alito, not Patricia Millett.

Update: Fixed reference to Sauer as Lauro.

Judge Rules Trump Had the Purpose of Inciting Insurrection on January 6

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Thus far, I haven’t engaged with the lawsuits attempting to keep Trump off the ballot under the Fourteenth Amendment. I think people absolutely have the right to make the case Trump’s actions on January 6 disqualify him from being President. But the only decisions that will matter on this front are what various Supreme Courts have to say and whether the Republican Party chooses to nominate Trump notwithstanding the risk he’ll be disqualified (to say nothing of whether Trump is disqualified in one of the six states that will really decide the election).

But Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment, is worth reading.

The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment. First, the Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence. Next, the Court concludes that the language Trump employed was likely to produce such lawlessness.

[snip]

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

[snip]

His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established.

[snip]

The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

[snip]

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

The Court is denying Petitioners the relief they request on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

But it’s also a preview of Trump’s January 6 trial.

Perhaps the most interesting aspect of Wallace’s ruling is that she found, over and over, that Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty (who contributed to some of the most outrageous War on Terror OLC opinions), presented no definition of insurrection that wouldn’t include January 6. Kash Patel presented no evidence to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Once Wallace dismissed Kash (and Katrina Pierson’s) claims that Trump intended to call the National Guard, all Trump had left was Brandenburg: a claim that his speech did not count as incitement, the same claim Trump has made in his efforts to defeat gags, the same claim Trump attempted to use to get Judge Chutkan to throw out any reference of the mob in his January 6 indictment.

Wallace used three things to show that Trump did intend to incite the mob.

First, she relied heavily on the testimony of Chapman University (!!!) professor Peter Simi, who described how Trump used the coded language of the far right to endorse violence. She mapped out what Trump added into his January 6 speech. And she talked about how Trump’s later statements — about Pence, and telling the mob he loved them — ratified their violence (an argument Amit Mehta also made), which Wallace used to distinguish Trump from Charles Evers.

As I have shown, Trump has tried to simply wish away the role of the mob in his indictment, a wish that Tanya Chutkan already rejected. Judge Wallace’s opinion makes it clear that’s all Trump has.

Judge Chutkan Denies Trump’s Bid to Disavow His Mob

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In a short order, Judge Tanya Chutkan denied Trump’s motion to strike all the language about his mob in his indictment. Her order was so short for two reasons: first, Trump hadn’t really addressed the issue of prejudice he was invoking, and second, the only means by which the indictment itself would introduce prejudice — in the jury room — won’t happen because Judge Chutkan never provides the indictment to they jury.

Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous inflammatory and unsupported accusations of its own, see, e.g., ECF No. 156 at 7 (“President Biden directed the Department of Justice to prosecute his leading opponent for the presidency through a calculated leak to the New York Times.”), devotes only a single paragraph to the prejudice requirement. His sole argument is that even if the jury does not receive a copy of the indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be, exposed to the Indictment and its inflammatory and prejudicial allegations, through media coverage relating to the case.” Id. at 16. But Defendant fails to cite even one example of that evidence.

Her reference to Trump’s own inflammatory comments called out something that is apparent in reading his reply brief to overturn her gag before the DC Circuit (which largely rehashes the same tired arguments). There, he argues that he has a First Amendment right to say whatever he wants — about Joe Biden, about the trial, about anyone else, including Chutkan, the death threat against whom Trump disclaims any role.

The prosecution describes President Trump’s statement, “If you go after me, I’m coming after you,” as a “public threat,” Resp.Br.4 (citing J.A.79). However, this statement made no reference to this case, and his campaign explained that it was made “in response to … special interest groups and Super PACs.” App.Br.15 n.7. The prosecution ignores this explanation—the only evidence of what the statement was actually referring to—and relies instead on naked speculation.

The prosecution implies that this statement caused a random person to threaten the district judge on August 5, 2023. Resp.Br. 5-6. Again, this is pure speculation, and wrong to boot. As noted above, President Trump’s statements criticizing the district judge came after the August 5 incident. J.A.79-80. The prosecution also cites no evidence that this random individual was inspired to act by President Trump’s August 4th social-media post, which did not even reference this case.

For what it’s worth, while he didn’t mention Trump, the father of Abigail Jo Shry, the woman who called Judge Chutkan’s chambers and threatened her, described that Shry’s threats were always responses to watching the news.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats.

Even in his reply brief, though, Trump made new threats, attacking Jack Smith’s spouse because she exercised her political rights to donate to Joe Biden.

Judge Chutkan didn’t quite say it: But Donald Trump is simultaneously claiming he has the right to make any threats he wants, but no one else has the right to describe the way his threats lead to violence.

She didn’t quite say it.

But she did make it quite clear that Trump is trying to have a protected privilege to make inflammatory threats, while gagging others about the effect of them.

Trump Continues to Disavow the Mob that Sacrificed Their Lives for Him

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As I have shown, Trump’s collective motions to dismiss his January 6 indictment selectively treat the five means alleged in the indictment (pressuring states, the fake elector plot, using Jeffrey Clark, pressuring Pence, and exploiting the mob), never actually dealing with all five as charged.

Rather than addressing the fifth, Mob (“directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021”), he instead filed a motion to strike all references to the mob.

Poof! It is a legalistic way to deny the very same mobsters (DOJ noted in their response) Trump has sung with and promised to pardon, and in so doing simply wish away the abundant evidence that Trump obstructed the vote certification.

It is the stuff of magic wands.

Trump’s reply uses a series of gimmicks to attempt to wish away parts of the indictment against him.

In one lengthy section that might invite a request to file a sur-reply by DOJ, Trump cites some of the greatest hits of articles by journalists who knew little about the investigation to claim that none of the investigation of the mob related to Trump.

12 Mark Hosenball and Sarah N. Lynch, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, REUTERS (Aug. 20, 2021), at https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/.

13 William M. Arkin, Donald Trump Didn’t Run the January 6 Riot. So Why Did It Happen?, NEWSWEEK (Jan. 6, 2022), at https://www.newsweek.com/donald-trump-didnt-run-january-6-riotso-why-did-it-happen-1661335.

14 Carol D. Leonnig and Aaron C. Davis, FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year, THE WASHINGTON POST (June 19, 2023), at https://www.washingtonpost.com/investigations/2023/06/19/fbi-resisted-opening-probe-intotrumps-role-jan-6-more-than-year/.

Trump also uses outdated and invented crowd numbers to claim that just a fraction of his mob was part of the mob, focusing just on the mob that entered the Capitol and not the one that besieged it, another part of this motion that might invite sur-reply.

In another place, Trump promises a motion in limine to eliminate all reference to the violence committed in his name, because the sheer violence of it will distract the jury.

For instance, the prosecution claims protesters were “extraordinarily violent and destructive.” Doc. 140, at 11. Even if marginally relevant, which it is emphatically not, the danger of “unfair prejudice, confusing the issues, [or] misleading the jury,” would far outweigh any probative value. F.R.E. 403. The fact that the prosecution even suggests that such inflammatory claims could have an appropriate place in the trial of President Trump only underscores the unfair and malicious way the Special Counsel is pursuing this case on behalf of the Biden Administration against its leading political opponent, President Trump.

In another paragraph of gibberish, Trump says that DOJ can’t include the actions (including of Couy Griffith, who had met with Trump personally) of people who weren’t charged with the same crimes he was and also says that because Merrick Garland generally defined Jack Smith’s mandate to crimes committed by those who weren’t at the Capitol, it means any crimes committed by people at the Capitol must be excluded.

Indeed, the January 6 cases relied on by the prosecution do not support its contention that “actions at the Capitol are relevant and probative evidence” of the charged conduct. Doc. 140, at 2. Several of the cases did not involve any of the charges brought against President Trump, rendering any relevance analysis inapplicable to this case. See, e.g., United States v. Griffith, No. CR 21-244-2, 2023 WL 2043223, at *1 (D.D.C. Feb. 16, 2023) (charges under 18 U.S.C. §§ 1752(a)(1), 1752(a)(2); 40 U.S.C. §§ 5104(e)(2)(D), 5104(e)(2)(G)); United States v. MacAndrew, No. CR 21-730, 2022 WL 17961247, at *1 (D.D.C. Dec. 27, 2022) (same). Those cases that did include at least one charge brought against President Trump (as well as charges not brought against him) all involved defendants who were personally present at the Capitol. Those are the types of cases that the Attorney General specifically carved out of the Special Counsel’s authority in Order No. 5559-2022: “This authorization does not apply to . . . future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021.” Actual presence has been emphasized as an important factor in the relevance analysis. See, e.g., United States v. Stedman, No. CR 21-383 (BAH), 2023 WL 3303818, at *2 (D.D.C. May 8, 2023) (“defendant’s knowing joinder of a broader crowd is probative of his participation in a venture that interfered with a congressional proceeding”).

In yet another tactic, Trump falsely claims that a passage about how Trump’s manipulation of the mob demonstrates his motive pertains exclusively to his tweet attacking Mike Pence.

Despite three pages of narrative, the prosecution only suggests that one of the paragraphs that is subject to the Motion to Strike is appropriate for this purpose: paragraph 111, which relates to a social media post by President Trump concerning Mike Pence. Paragraph 111 does not show motive or intent as it relates to the actions at the Capitol.

In doing so, Trump ignores references to four other paragraphs explicitly cited in DOJ’s response.

As set forth in the indictment, on the morning of January 6, the defendant knew that the crowd that he had gathered in Washington for the certification “was going to be ‘angry.’” ECF No. 1 at ¶ 98. Despite this knowledge—or perhaps because of it—in his remarks to supporters, the defendant told knowing lies about the Vice President’s role in the congressional certification, stoked the crowd’s anger, and directed them to march to the Capitol and “fight.”

[snip]

Although the defendant knew that the certification proceedings had been interrupted and suspended, he rejected multiple entreaties to calm the rioters and instead provoked them by publicly attacking the Vice President. ECF No. 1 at ¶111. And instead of decrying the rioters’ violence, he embraced them, issuing a video message telling them that they were “very special” and that “we love you.” Id. at ¶ 116. Finally, while the violent riot effectively suspended the proceedings over which the Vice President had been presiding, the defendant and his coconspirators sought to shore up efforts to overturn the election by securing further delay through knowing lies. Id. at ¶¶ 119, 120.

Trump here ignores the warning from his aides that the mob was angry, Trump’s video declaring “we love you” to his mob, and Trump’s renewed efforts to prevent the vote certification even after the mob left.

And in two different ways, Trump tries, again, to simply wish away the evidence that Trump corruptly tried to obstruct the vote certification, two of the charges against him. In one, Trump claims that the certification of the election at the Capitol provides no context to charges that he obstructed the certification of the election at the Capitol.

As a final, futile, attempt to establish relevance, the prosecution argues that the actions at the Capitol on January 6 provide “necessary context for all the charged conduct.” Doc. 140, at 12. Nevertheless, again, the prosecution did not charge President Trump with any crime relating to the actions at the Capitol, such as insurrection or incitement. Actions by others—whom the prosecution does not claim were part of any of the alleged conspiracies—do not provide any context for the actions based on which President Trump is charged.

And then, two paragraphs later, Trump points to the paragraph delimitation in just one charge — the conspiracy to defraud the vote certification — that doesn’t exist for the other three charges, to say that DOJ has excluded the actions described in the paragraphs about the mob.

The challenged allegations’ lack of relevance to the charges against President Trump is further demonstrated by the Indictment itself. The Indictment claims that President Trump “and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged” in a list of paragraphs. Doc. 1, ¶ 124. The Indictment omits Paragraphs 10(d), 105, 106, 107, 108, 109, 110, 112, or 113 from this list. Thus, the prosecution does not claim that the actions at the Capitol on January 6 were “acts to effect the object of the conspiracy,” an admission that these paragraphs lack relevance to the charged conduct.

Compare the list of paragraphs cited in the 18 USC 371 charge with paragraphs in the other three charges that cite paragraphs 8 through 123.

The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.

Not just his motion to strike, the promised motion in limine, and all his other efforts to, like the Apostle Peter, deny the mob he has made his religion are gimmicks, just efforts to wish away abundant evidence against him.

It all comes off as rather desperate.

And as you consider the flop sweat coming off Trump’s motion to strike, consider this: DOJ must have provided, in discovery, the evidence they plan to use to show what Trump’s mob did and that they did it because of him and his lies. DOJ has repeatedly said they’ve provided the evidence they plan to use at trial. Among the things Trump must have in his possession are the videos that show Danny Rodriguez went directly from hearing Trump’s speech to almost murdering Michael Fanone, and others responded to Trump’s Pence tweet by serving a critical role in opening a second front of the attack on the Capitol and breaching the Senate.

Trump has — must have!! — seen the evidence about his mob DOJ intends to use at trial. And his response is this blubbering effort to wish his mob away.

DOJ Accuses Donald Trump of Asking for Special Treatment Even His Seditionists Didn’t Get

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You’ve no doubt heard about the spat over whether Donald Trump’s DC trial should be televised (which court rules pretty much prohibit). Judge Chutkan allowed the parties to weigh in a media request to film the trial.

DOJ, after claiming to consult with Trump, filed an 18-page opposition, citing case law, but focusing especially on witness intimidation.

Paired with the ever-increasing acrimony in public discourse, witnesses and others who appear on video may be subjected to threats and harassment. Were there an appeal and retrial, witnesses who were subjected to scrutiny and harassment on social media may be unwilling to testify again. Even the knowledge that their images will circulate on social media may temper a witness’s initial testimony.

Trump responded, demanding a televised trial, with one of the most bombastic filings he has submitted.

After obtaining permission, DOJ replied, again focusing on witness tampering. It notes that he’s asking for special treatment.

Instead, decrying the alleged unfairness of the unequivocal and constitutionally-sound broadcast prohibition that has governed federal criminal trials—no matter the defendant—for decades, the defendant’s response is a transparent effort to demand special treatment, try his case in the courtroom of public opinion, and turn his trial into a media event.

But they also situated Trump among similar defendants — noting, for example, that fraud defendants like to continue their con inside the courtroom.

He desires instead to create a carnival atmosphere from which he hopes to profit by distracting, like many fraud defendants try to do, from the charges against him.

More interesting still are the high profile trials to which DOJ likens this one: All those of terrorists.

Indeed, the defendant ignores that high-profile federal criminal trials have long proceeded in accordance with the broadcast prohibition under the rules—and that they have garnered significant and detailed media coverage of courtroom proceedings nonetheless. See United States v. Tsarnaev, 595 U.S. 302, 313 (2022); United States v. Moussaoui, 205 F.R.D. 183, 184 (E.D. Va. 2002); United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996). This has remained true in the context of trials related to the January 6, 2021 attack on the United States Capitol, including on seditious conspiracy charges. See, e.g., United States v. Rhodes, 610 F. Supp. 3d 29 (D.D.C. 2022); United States v. Nordean, 579 F. Supp. 3d 28 (D.D.C. 2021). The comprehensive, often minuteby-minute, public reporting on courtroom hearings in this case provides further evidence that the defendant’s desired “sunlight” need not come from eschewing the rules.

To be sure, Tsarnaev, Moussaoui, and McVeigh are direct precedents on access to the courtroom, as are those of Stewart Rhodes and Trump’s own Proud Boys.

But DOJ could have addressed the high profile trials of Roger Stone or Scooter Libby — the criminals Trump already pardoned, rather than the seditionists he promised to in a second term.

Fraudsters and seditionists. Those are Trump’s peers.

John Lauro’s DC Delay Tactics Backfire in Florida

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As I noted, right after Judge Aileen Cannon suggested, during a hearing on November 1, that conflicting trial schedules in DC and Florida meant she’d likely delay the stolen documents trial scheduled for May 20, Trump’s lawyers in DC filed to stay their DC trial. DOJ notified Judge Cannon right away that Trump had done that — basically proving the contention they made in the hearing that Trump was just stalling.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Judge Cannon hates to be embarrassed and probably was particularly perturbed that DOJ suggested she was allowing herself to be manipulated. She filed an order basically telling them never to do that again.

The parties are hereby reminded of the requirements of Local Rule 7.8 on Notices of Supplemental Authority. Except as authorized by Court order, the substantive content of any such notice (or response) may not exceed 200 words and may not be used as a surreply absent leave of Court. Future non-compliant notices or unauthorized filings will be stricken without further notice. Signed by Judge Aileen M. Cannon on 11/3/2023.

But it worked, at least for now. Judge Cannon has issued an order revising pretrial deadlines, some of which (such as a December response to a government motion already filed) don’t make sense at all. But she has not delayed the May 20 trial date and won’t consider it until March 1, at which point it will be clear whether the DC case will go forward that month.

Following review, it is ORDERED AND ADJUDGED as follows. Defendants’ Motions to Continue Pre-Trial Deadlines are GRANTED IN PART for the reasons stated below. Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

This increases the chances that at least one of these trials will go foward before the election.

How Ryan Nichols Responded to Trump’s Mike Pence Tweet

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A number of you have noted that dumbass James Comer has subpoenaed Hunter Biden and others (but asked only for voluntary testimony from Tony Bobulinski). And Trump has filed his appeal of Judge Tanya Chutkan’s gag order.

I’ll get to both of those.

For now, I’m more interested in the details of Ryan Nichols’ plea. Nichols is a former Marine who drove from Texas to DC, with four guns in his truck, with a buddy. He carried a crowbar to the Capitol. As he was marching to the Capitol from the Ellipse, he heard about Trump’s tweet targeting Mike Pence. In response, he gave a long, recorded speech responding to Trump’s news that Pence was not going to overturn the election by promising to drag politicians in the streets.

I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.

Later, at the Capitol, he pepper sprayed cops guarding the Tunnel, then called others to take up weapons. “If you have a weapon, you need to get your weapon,” chanting, “Pedo Pence.”

At the end of the day, he again recorded himself, explaining how the mob had listened to Trump, learned Pence “did the wrong thing, and so they stopped the vote.”

I watched patriots gather and on the way down Pennsylvania Avenue after we listened to President Trump speak, we heard that Pence did the wrong thing. And as we got [sic] the Capitol building the consensus across the board was the same, that if Pence did the wrong thing and sold us out, then we have to fight.

[snip]

They showed where Pennsylvania said yesterday, “hey, we screwed up. We want to change this,” but Pence did the wrong thing and allowed them to continue with the vote. So we stormed the Capitol building, and they stopped the vote. And went down in to the tunnels and hid, like the fucking cowards they are.

Instead of coming out there and addressing “we the people,” they ran. Because they knew they were doing the wrong thing. So we clashed with Capitol Police.

After engaging in the most committed kind of conspiracy theorizing about the January 6 investigation for years, Nichols pled guilty the other to assault and obstruction.

His guidelines sentence is 78 to 97 months.

Congressman Clay Higgins, who is nothing short of batshit, wrote a letter calling on Judge Lamberth to sentence Nichols to time served, less than two years, rather than the guidelines upwards of 6.5 years.

Because Nichols recorded much of what he did with a GoPro and/or on his phone, this is precisely the kind of evidence that prosecutors may use to show how Trump mobilized a mob against Congress, and Mike Pence in particular, to obstruct the vote certification on January 6.

As I noted the other day, Jack Smith has promised to prove Trump’s role in mobilizing the mob — both those who attacked cops and those who threatened to attack Mike Pence — at trial.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

Already, DOJ has collected evidence to show that rioters who engaged in some of the most consequential actions on January 6 were directly responding to Trump’s incitement. The guys who first breached the Senate chamber and helped open a second major breach at the East door, for example, took GoPro video of themselves specifically looking for Pence. The guy who almost murdered Michael Fanone was caught on camera responding to Trump’s incitement by promising to slit Joe Biden’s throat. His buddy, who helped Ryan Nichols incite the crowd, also tied storming Congress to targeting Mike Pence.

“Pence did the wrong thing … So we stormed the Capitol, and they stopped the vote,” Nichols explained his actions that day.

These kinds of statements, mobsters explaining how they responded to Trump’s statements by taking violent action to stop the voter certification, happened over and over.

That’s what Trump wants to keep out of his trial.

DOJ Refuses to Let Trump Disavow His Mob

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In three different ways in their responses to Trump’s motions to dismiss submitted yesterday, Jack Smith’s prosecutors emphasized that Trump should be subject to the same standards — and legal precedents — as the mob he sicced on the Capitol.

One pertains to the appellate precedents already set in the application of 18 USC 1512(c)(2). DOJ cited both January 6 precedents — Fischer and Robertson — to lay out that interrupting the vote certification to secure the presidency for oneself would be evidence of corrupt intent.

The alternatives include “using independently unlawful, felonious means,” id. at *9, and acting with a “corrupt purpose,” id. at *11, which includes acting “with an intent to procure an unlawful benefit,” Fischer, 64 F.4th at 352 (Walker, J., concurring) (quotation marks omitted), such as “secur[ing] . . . the presidency,” and acting dishonestly, Arthur Andersen LLP v. United States, 544 U.S. 696, 706- 07 (2005); see Robertson, 2023 WL 6932346, at *12 (noting that “dishonesty” or “seeking a benefit for oneself or another” is not necessary but “may be sufficient to prove corrupt intent”).

Then, in response to Trump’s claim of selective prosecution (based off two stories — the famous Carol Leonnig one and a much earlier NYT one, both by journalists who did little other coverage of the larger January 6 investigation) — DOJ pointed to all the other similarly situated Jan6ers who not only were prosecuted, but whose claims of selective prosecution or prosecution for speech failed.

The passage cited to:

  • Carl Nichols’ opinion that Garret Miller’s role in interrupting the peaceful transfer of power distinguished him from Portland rioters.
  • Trevor McFadden’s opinion that, because January 6 posed a greater threat than the Portland riots, David Judd could not argue he was being prosecuted more severely than they had been for setting off a firecracker in The Tunnel.
  • James Boasberg’s opinion that judge’s son Aaron Mostofsky, was not being prosecuted because he wore animal pelts to January 6, but because he obstructed the vote certification.
  • John Bates’ opinion that the threat to government officials and employees, as well as the objective of obstructing the vote certification, could warrant harsher charges against retired Air Force Lieutenant Colonel Larry Brock, who brought zip ties onto the floor of the Senate.
  • John Bates’ opinion that Zeeker Bozell, was not being prosecuted for his political views but for “the destructive acts he allegedly took to disrupt the January 6 Certification.”
  • Royce Lamberth’s findings of fact that it didn’t matter that, even if Alan. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.”
  • Amy Berman Jackson’s opinion dismissing Danny Rodriguez’ claim that he was being prosecuted for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” noting that it was his criminal conduct, including tasing Michael Fanone.
  • Amit Mehta’s argument that Stewart Rhodes and his co-conspirators were charged of more in their seditious conspiracy indictment than simply calling on Trump to invoke the Insurrection Act.

This list includes four GOP appointed judges, including his two Trumpiest appointments (one a former Clarence Thomas clerk), it includes the scion of a prominent Republican family and several people who invaded the Senate, it includes two of the defendants whose actions prosecutors showed were the most directly tied to Trump’s speech. And it includes an Oath Keeper convicted of sedition.

That section describing January 6 defendants whose First Amendment claims have already failed included a cross-citation to DOJ’s response on the motion to strike. Over the course of that filing, DOJ provided still more precedents from Trump’s mob, about the collective action of the mob, that they argue should apply to him too:

“The sheer numbers of individuals making up the mob that marched on the U.S. Capitol on January 6, 2021—without stopping at the fencing or the barricades or the police lines or the chemical spray and other crowd control tools deployed by law enforcement—had the effect of overwhelming law enforcement officers attempting to secure the Capitol, with the direct consequence of creating a catastrophic security risk requiring the evacuation of lawmakers, staff, and press representatives legitimately gathered inside the Capitol building that day to conduct, facilitate, and observe the certification of the Electoral College vote count and triggering a lengthy delay before this constitutionally-mandated proceeding could resume.”

  • James Boasberg’s opinion that Sara Carpenter could not exclude evidence of the effect on the vote certification because, “the weighty probative value of evidence that broadly depicts what happened on January 6 outweighs any potential prejudice or cumulativeness.”
  • James Boasberg’s opinion, again finding that such general evidence can come in to prove what Bradley Bennett obstructed.
  • Colleen Kollar-Kotelly’s opinion that evidence about context could come in at Danean MacAndrew’s trial because “the size of the crowd, political leaders, and false allegations of voter fraud and election interference” … “bear on Defendant’s mental state at the time of the charged offenses.”
  • Colleen Kollar-Kotelly’s opinion repeating her MacAndrew ruling that the government could present evidence of the collective action of the mob in Anthony Alfred Griffith’s trial.

The response to Trump’s motion to strike did more: It hung Trump’s mob on him. It called Trump out for disavowing his mob in an attempt to wipe away a critical part of the indictment.

[P]ublicly, the defendant has promoted and extolled the events of that day. While the violent attack was ongoing, the defendant told rioters that they were “very special” and that “we love you.” In the years since, he has championed rioters as “great patriots” and proclaimed January 6 “a beautiful day.” In this case, though, the defendant seeks to distance himself, moving to strike allegations in the indictment related to “the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. The Court should recognize the defendant’s motion for what it is: a meritless effort to evade the indictment’s clear allegations that the defendant is responsible for the events at the Capitol on January 6.

It debunked Trump’s claim that he is not charged with being responsible for January 6.

The defendant’s motion is premised on the disingenuous claim that he is not charged with “responsibility for the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. But the indictment clearly alleges, and the Government will prove at trial, that the defendant bears such responsibility.

And, as I predicted would happen, DOJ committed to prove that Trump obstructed the vote certification — and nearly got Mike Pence killed — in significant part, with his mob.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

DOJ’s commitment to prove this echoes moves it has taken during past prosecutions — the evidence of Trump’s effect on defendants has already been introduced in plea hearings or at trial.

DOJ has been preparing to prove this for a very, very long time.

Meanwhile they’ve been collecting receipts of all the times that Trump has owned this mob since — including receipts from the Waco rally kicking off his current presidential run.

The Government will further establish the defendant’s criminal intent by showing that, in the years since January 6, despite his knowledge of the violent actions at the Capitol, the defendant has publicly praised and defended rioters and their conduct. There is a robust public record of how rioters’ actions at the Capitol on January 6 were extraordinarily violent and destructive, including attacks on law enforcement officers with flag poles, tasers, bear spray, and stolen riot shields and batons. One officer who was dragged into the crowd endured a brutal beating while members of the crowd reportedly yelled, “Kill him with his own gun!” Terrified lawmakers and staff hid in various places inside the building, and many were evacuated. Despite this, the defendant has never wavered in his support of January 6 offenders. For instance, the Government will introduce at trial the defendant’s own statements in the years since January 6 proclaiming it “a beautiful day” and calling rioters “patriots,” many of whom he “plan[s] to pardon.”2 The Government will also introduce evidence of the defendant’s public support for and association with the “January 6 Choir,” a group of particularly violent January 6 defendants detained at the District of Columbia jail. 3 The defendant’s decision to repeatedly stand behind January 6 rioters and their cause is relevant to the jury’s determination of whether he intended the actions at the Capitol that day.

3 The defendant began a campaign rally in Waco, Texas, on March 25, 2023, by playing a recording of the Star-Spangled Banner by the January 6 Choir. Of the January 6 Choir, the defendant told the crowd, “[O]ur people love those people, they love those people.” See C-SPAN at 2:44, https://www.c-span.org/video/?526860-1/president-trump-holds-rally-waco-texas. The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/.

In an attempt to avoid the fate hundreds of them have already faced, Trump attempted to disavow his mobsters.

DOJ intends to prove that Trump was very much a part of the mob that attacked the Capitol on January 6 and almost got his Vice President killed.

Trump’s Retribution Promises and Media Complicity

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I have been critical of NYT’s serial effort — now joined by WaPo — to predict retribution in a second Trump term, without doing any recent reporting on how that represents a continuation of Trump’s first term, not anything new. Rather than assign three reporters (including reporters who played key roles enabling past retribution efforts) to treat this as a hypothetical future endeavor, why not assign one to report on newly disclosed details of how Bill Barr ordered Scott Brady to dig up more evidence against Joe Biden’s son?

The attention on the WaPo, especially, has sucked up attention that might otherwise be focused on an excerpt from Jonathan Karl’s new book. It’s about the same thing — retribution. But not about past retribution, nor future retribution, but the way that Trump is leveraging cultural cues about retribution, starting with the launch of his campaign from Waco, TX on the thirty year anniversary of the raid (connotations that were evident in advance).

Given the excerpt, I’m not entirely sure whether Karl thinks Trump is doing this out of a sense of weakness, or because he knows the cultural connotations retribution invokes will elicit a certain kind of response from his followers.

Karl describes how Trump turned to this theme after being rattled by his first indictment (and elsewhere describes Trump’s fury at Todd Blanche to agreeing to a trial data in the Alvin Bragg case prior to the end of the primaries).

The problem was that the indictment had rattled him. For all his bluster, Trump desperately wanted to stave off an arrest, and he was embarrassed he hadn’t been able to. When it came time to turn himself in, he slipped out of Trump Tower and got into a black SUV.

[snip]

D.A. Bragg and Juan Merchan, the presiding judge, were met by a version of Donald Trump that was much quieter, more somber—more timid—than the man he appeared to be on television and social media. The night before, he had said that Bragg should “INDICT HIMSELF.” But finally given a chance to confront them face‐to‐face, Trump was mostly silent. During the 57‐minute proceeding, Trump said just 10 words—“not guilty,” “yes,” “okay, thank you,” “yes,” “I do,” “yes”—and spoke so quietly that reporters had to strain to hear him.

For the first time in years, Donald Trump was not the most powerful person in the room.

Karl also describes Steve Bannon revelling in the explicit Neo-Confederate iconography of the speech Trump gave at CPAC.

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

Both can be true, of course. Faced with a kind of vulnerability he has never before faced and willing to burn everything down to find a way out, Trump is all too happy to mobilize far right extremists as his instrument (in his description of the Waco event, Karl describes Trump celebrating January 6).

To the extent that Trump’s campaign logic is retribution, then, the spate of stories — both the NYT one and the WaPo one featuring Trump-whisperers — simply reinforce Trump’s campaign message while downplaying the way Trump has always engaged in retribution, often backed by threats of violence.

Indeed, they help Trump provide assurances that in the future, he’ll find better prosecutors than John Durham, who was every bit as corrupt as the prospective stories predict Trump’s select prosecutors might be in the future, every bit as much about retribution, but who never found evidence that could sustain a conviction. He’ll find better prosecutors, more corrupt ones, Trump needs to tell his mob, because quite honestly, he made these very same promises in 2020 and failed to deliver, though did untold damage in the process.

And those failures weren’t for want of trying or any kind of ethical compunction on his part or the instruments of his retribution.

The reason I think Karl’s descriptive piece is more useful than the predictive pieces (aside from the way the predictive pieces totally whitewash Trump’s past unprecedented focus on retribution) is because he identifies the puzzle at the core of Trump’s success running on retribution: What’s in it for his mob? Why does this focus on retribution work?

“If they can do it to him they can do it to you,” Donald Trump Jr. tweeted. Noticeably absent from Trump’s obsession with his own victimization was any real focus on helping Americans who weren’t under criminal investigation, but his advisers were convinced that the ploy would work. “This week, Trump could lock down the nomination if he played his cards right,” Bannon told me as rumors began to swirl of Bragg’s indictment. “‘They’re crucifying me,’ you know, ‘I’m a martyr.’ All that. You get everybody so riled up that they just say, ‘Fuck it. I hate Trump, but we’ve got to stand up against this.’”

[snip]

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

But “they” weren’t coming after Trump’s law‐abiding supporters—they were coming after Trump. Decades earlier, the presidential candidate Bill Clinton told voters that he felt their pain. Trump was now doing the reverse, trying to persuade his supporters to feel his pain as if it were their own. [my emphasis]

The answer this question is both obvious, and urgent.

It’s obvious, because Trump really is keying into something that isn’t entirely about extremism. And/or Trump is in many cases the gateway drug to radical extremism, something that has shown up over and over in January 6 cases. People respond to something in Trump and then, because Trump’s networks include large numbers of right wing extremists, their ideology gains traction where they might otherwise not. And then the cultural coding of retribution starts to resonate.

It’s urgent, because whether or not Trump wins election, if he primes his mob to embrace political violence again, January 6 will look like elementary school recess. On January 6, many people were armed, but even the ones who brought guns — and plenty did — kept them holstered. That won’t be true the next time.

It is more urgent to show how Trump’s past obsession with retribution hurt people, from his targets, to American security, to the wives of Republican Congressmen, than it is to report that he’ll do more of the same, only earlier this time. It is more urgent to understand why Trump’s mob buys into his messiah syndrome and puncture its power.

I’m not suggesting we return to a moody contemplation of the Deplorables. Nor am I hoping NYT reverts from its prospective reporting on retribution to its past obsession with Trump supporters in diners.

I’m asking for a focus on the continuity of retribution in Trump’s power — past, present, and future — along with some soul-searching about the media’s cooperation in that retribution dynamic.

Of particular note: the media’s coverage of Trump’s legal woes has only helped him create this dynamic.

Take the coverage of Trump’s testimony in his fraud trial yesterday. The NYT was one of the rare outlets that got into something substantive — that Trump did have a role in the valuations that Judge Engoron has already ruled to be fraudulent — in a headline; and it reported on that substance after six paragraphs describing Trump’s stunts. Most of the rest, however, reported nothing but conflict, virtually all of it staged or baited by Trump. Trump succeeded in entirely flooding out any reporting on his fraud — something that goes to the core of his ability to govern, something that goes to his success at fooling supporters and lazy journalists — by distracting everyone with spectacle, a strategy Rolling Stone reported he would adopt a month ago. Rather than reporting on all the evidence — even presented yesterday, amid the circus stunts — that Trump is actually the guy sticking it to the little guys, not the one vindicating them, most outlets just printed one after another of Trump’s taunts.

And in the process, just like any other staged wrestling match, spectators pick one or another side and root loudly, brainlessly. Even for those rooting for law and order, that’s unhealthy, because it invites hero worship and a false belief that prosecutions are easy and quick. It encourages people to outsource defense of democracy to prosecutors rather than do the hard work of organizing themselves. It invites people to engage in mockery rather than rational assessment of the legal case.

But for those who’ve been convinced by unrelentless propaganda about the Russian investigation — which showed that five top Trump aides lied to cover up Trump’s ties with Russian, for those who bought into Trump’s sustained attack on the legitimacy of democratic elections, for those who’ve been bombarded by non-stop coverage of Hunter Biden’s dick pics, the side they’ll pick is obvious. Adopt Trump’s conflict staging, and you will only ever heighten existing partisan divides.

Trump doesn’t care if a bunch of self-satisfied people mock him as a clown. Indeed, that’s what he wants. Because every time they do so publicly, it reaffirms that he’s the guy on the side of average people, fighting the pencil-headed assholes who frown at the little guy. Plus, if you mock something as serious as a lifetime of defrauding financial institutions as a circus, rather than explain how it allowed Trump to get something he hadn’t earned, it tells everyone that Trump’s adjudged fraud isn’t really serious. In your actions, you confirm the argument he is making.

And all the while, it prevents anyone from talking about how Trump has disavowed all the January 6ers who are facing the consequences of following Trump, claiming he has no role in their crimes. It prevents anyone from talking about why leaving nuclear documents in your bathroom requires spooks to shut down collection programs, leading directly to diminished US influence as war breaks out overseas. It prevents anyone from talking about how all of Trump’s brand has been built off lies claiming he, his net worth, his gaudy penthouse are much larger than they are.

Regular life may be screwing over the little guy (or, under Biden, regular life might have delivered financial gains and a resurgence of organized labor strength that never gets covered). But that’s a different thing than saying that “they” are coming for the little guy.

Yet Trump continues to convince people differently, in large part because the media plays along with Trump’s staged circus.