DOJ submitted their responses to Trump’s motions to dismiss today. As a reminder, here’s my summary of Trump’s arguments.
I’ll write them up tomorrow, but here are links:
Here’s my Xitter thread on the omnibus response to MTD on Statutory and Constitutional Grounds.
Judge Tanya Chutkan issued her order denying Trump a stay of her gag order on October 29.
That was admittedly a Saturday. Nevertheless, it took Trump four days before he ran to the DC Circuit to cry about an emergency infringement on the First Amendment rights of him and his mob.
He took those four days even as he demanded that the DC Circuit — which had been expecting Trump’s initial brief on November 8 — rule on this motion by November 10.
The Court should stay the Gag Order pending appeal. In addition, President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023. If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court.
During those four days that Trump didn’t file for a stay, John Lauro found time to file three different things (one, two, three) in Judge Chutkan’s docket. In those four days, Trump posted a slew of attacks on Joe Biden, the 2020 election, and his prosecution (though admittedly many of the recent posts targeted Arthur Engoron), many of them attacks that — he claims — this gag prevents him from making.
I’ll leave it to smarter people to explain the posture that leaves this case.
What I’m more interested in are the arguments that Trump makes that should not withstand prolonged scrutiny, at least not at the DC Circuit, arguments that are surely designed to trigger the interest of Sam Alito and Clarence Thomas.
In his appeal, Trump argues — substantially for the first time — that his gag subjects him to viewpoint discrimination. There’s a very short section dedicated to the topic, citing an inapt precedent.
7. The Gag Order reflects forbidden viewpoint discrimination.
By forbidding speech that “target[s]” certain individuals, the Gag Order prohibits only (vaguely defined) negative speech about them. See infra, Part I.C. In Matal v. Tam, the Supreme Court held that prohibiting only negative or “disparaging” speech constitutes forbidden viewpoint discrimination. 582 U.S. 218, 243 (2017) (plurality opinion). Such a prohibition “constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny.” Id. at 247 (Kennedy, J., concurring in part and concurring in the judgment). To prohibit “disparaging” speech “reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.” Id. at 249; see also R.A.V., 505 U.S. at 391- 92. The Gag Order violates these principles
Trump lards the rest of the discussion with claims that a gag tied to the crimes alleged against Trump amounts to censorship of right wing views.
Based this speculation, the district court entered a sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate, based solely on an unconstitutional “heckler’s veto.” The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.
[snip]
President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself. The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed.
[snip]
As a viewpoint-based prior restraint on the core political speech of a Presidential candidate to an audience of over 100 million Americans, the Gag Order is virtually per se invalid.
There are nine appearances of the word “viewpoint” in the entire appendix. All appear in Trump’s filings bidding for a stay, not his underlying opposition to the gag. But all of those also appear as part of an argument about political speech — an important argument, but one largely divorced from the circumstance of this gag, not as a free-standing argument about the free speech of nutjob right wingers.
That argument is closely related to (and builds on) another argument that Trump belatedly raised: that gagging his speech harms the First Amendment rights of his 100 million followers.
4. The Gag Order violates the rights of tens of millions of Americans to receive President Trump’s speech.
The First Amendment’s “protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). A restriction on President Trump’s speech inflicts a reciprocal injury on the rights of over 100 million Americans who listen to him, irrespective of their political beliefs.
This right of listeners to receive President Trump’s message has its “fullest and most urgent application precisely to the conduct of campaigns for political office,” especially for the Presidency. Susan B. Anthony List, 573 U.S. at 162. Ford emphasized that, if Congressman Ford were silenced, “reciprocally, his constituents will have no access to the views of their congressman on this issue of undoubted public importance.” 830 F.2d at 601. Likewise, Brown stated that “[t]he urgency of a campaign … may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications….” 218 F.3d at 430.
In Trump’s appeal, he doesn’t cite evidence supporting this number, but — as I already noted — the underlying motion relies on garbage double counting of bots on the Twitter platform Trump no longer uses. Given that this argument is based on fraudulent numbers, it amounts to a defense of the First Amendment rights to listen of Trump’s imaginary friends, including the Russian bots the now-deceased Yevgeniy Prigozhin deployed to fuck with US politics.
The problem with this argument is, as DOJ noted in its response to Trump’s bid for a gag, Trump misrepresented the record on that point.
11 The defendant did not invoke these interests in his response to the Government’s motion for an order under Local Criminal Rule 57.7(c). And while the defendant claims to have invoked these interests at the hearing, only to have been unfairly interrupted by the Court (ECF No. 110 at 17), his citations mischaracterize the record. For example, he asserts (id.) that the Court interrupted him in response to his statement, “And what the government is proposing here is an order not just directed against President Trump but against the American electorate that wants to hear from President Trump under these circumstances.” The Court did not, in fact, interject in response to that point. See ECF No. 103 at 44. Rather, it was only several sentences later, after defense counsel returned to his oft-repeated talking point that “[t]his is the first time we’ve had a sitting administration prosecute a political opponent” that the Court responded, “I’m going to interrupt you. . . . You have said that. You have said it repeatedly. I have heard it.” Id. Likewise, the defendant asserts (ECF No. 110 at 17) that, when counsel said, “The American people are entitled to understand that and understand the consequences of that,” the Court simply responded, “No.” The Court did no such thing. After defense counsel’s comment, the Court asked why the defendant “is entitled to suggest that an appropriate punishment would be death.” ECF No. 103 at 59-60. When defense counsel invoked the First Amendment in response, the Court said, “No. As part of that. But again, the First Amendment protections must yield to the administration of justice and the protection of witnesses.” Id.
In a footnote of Judge Chutkan’s order denying the stay, she agreed.
Defendant’s Motion argues that his speech restrictions are inconsistent with the “right of listeners to receive President Trump’s message.” Motion to Stay at 15. Defendant did not squarely raise that argument in his opposition brief to the government’s original motion; the closest he came to identifying any authority for it was an unrelated “see also” citation to United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987), a case that he now quotes to support his right-of-listeners argument. Compare ECF No. 60 at 5, with Motion to Stay at 16. But the court expressly addressed and distinguished that case. Order at 2–3. In any event, the argument does not alter the fundamental principle that First Amendment rights, whether those of the speaker or the listener, may be curtailed to preclude statements that pose sufficiently grave threats to the integrity of judicial proceedings.
Undeterred by that footnote, Trump argues that Chutkan’s failure to address something he didn’t raise is her reversible error, not a waiver on his part.
Though the issue was raised repeatedly, A159-60, A165, A178; A47, A62-63, the district court gave the First Amendment rights of President Trump’s audiences no meaningful consideration. The Gag Order does not mention them, see A1-3, and the district court declined to consider them when President Trump raised them, e.g., A47, A62-63. That is reversible error.
I’ve linked two of the spots in the record, above, where John Lauro imagines he raised this — A47, which he cites twice, was in the oral arguments, not the underlying brief. None was a substantive argument about his imaginary 100 million friends. Here’s the appendix if you want to see if you can find what other things he is citing to.
There are other problems with this appeal. Trump doesn’t address the part of Chutkan’s order that explicitly permits Trump to attack, “the current administration or the Department of Justice.” Trump does not engage, at all, with the evidence DOJ submitted of expected trial witnesses testifying under oath about how mobs started threatening them after Trump tweeted mean things. Notably, Trump’s citations to the government’s examples of threats that Trump made between August 2 and September 26 doesn’t cite to the footnotes in the government response that reference the threat — made the day after the linked threat, “if you come after me I’m coming after you” — to Judge Chutkan herself.
By the time the Gag Order was entered, the case had been pending for almost three months, and President Trump had often spoken about it. The prosecution provided seventeen examples of public statements by President Trump between August 2 and September 26, 2023, that it considered objectionable. A140-46; A190- 91. However, it did not produce any evidence that any prosecutor, witness, or court staffer experienced “threats” or “harassment” after President Trump’s speech. Likewise, it did not produce any evidence that any witness or prosecutor felt threatened or intimidated by President Trump’s speech—however subjectively—during three months of President Trump’s public commentary on the case. See A140-46; A190-91.
Lauro claims DOJ didn’t present any evidence that anyone, including court staffers but not the judge herself, felt intimidated by threats that followed on Trump’s incitement and simply ignores that footnote. But someone in Judge Chutkan’s chambers alerted the Marshals after that threat, and the FBI deemed it sufficiently dangerous to arrest Abigail Jo Shry for making it.
So there are other problems with this appeal, exhibiting the same obstinate refusal to address the record as it stands that Judge Chutkan described in her opinion refusing the stay.
But the key dynamic, in my opinion, is that Trump is trying to refashion his argument to trigger the known biases of Sam Alito and Clarence Thomas. But he’s doing so — launching a bid to protect the First Amendment rights of his imaginary friends — after the fact.
This is not a frivolous argument. The legal arguments should bear the weight of the historic decision that ultimately will result.
But instead of making serious arguments, John Lauro has pitched the Supreme Court’s right wing justices an argument about Trump’s imaginary Twitter friends.
Update: A DC Circuit panel of 3 Democratic appointees (Obama, Obama, Biden) has stayed the gag and ordered and set an expedited briefing that is quick enough SCOTUS is unlikely to have any reason to intervene.
PER CURIAM ORDER [2025399] filed considering motion to stay case [2025149-2], ORDERED that the district court’s October 17, 2023, order be administratively stayed pending further order of the court. Further ordered that his case be expedited. setting briefing schedule: APPELLANT Brief due 11/08/2023, at 5:00 p.m.. APPENDIX due 11/08/2023, at 5:00 p.m.. APPELLEE Brief due on 11/14/2023, at 5:00 p.m., APPELLANT Reply Brief due 11/17/2023, at 12:00 p.m., scheduling oral argument on Monday, 11/20/2023. Before Judges: Millett, Pillard and Garcia. [23-3190] [Entered: 11/03/2023 05:06 PM]
One of the reasons I suspect that Trump-leaning Republicans replaced Kevin McCarthy with a key player in Trump’s last attempted coup is because Trump shows no signs of any plan to try to win his Federal criminal trials.
For some time, it has appeared (to me at least) that he has approached these cases with the belief that if he can use them as a campaign prop with which to get reelected, then he can simply pardon himself or remain President indefinitely to beat the Federal rap. That’s one of the reasons, I think, why he is treating many of his DC court filings as stunts, especially his extensive fundraising and messaging campaign around the gag order.
Delay, disinform, then dismiss.
I get that. I expected that. Yet, I still expected him to present the best legal case he could as insurance in case winning or stealing the election and self-pardoning doesn’t work.
He has lawyers capable of making very competent legal arguments.
So I’m frankly shocked by how inadequate his Motions to Dismiss have been. I wrote them up here and made this nifty table summarizing the arguments.
This is not just a legal observation — though some of his purportedly legal arguments, most notably his selective prosecution motion — are legally shitty. Don’t take my word for it: take Carissa Byrne Hessick’s expert opinion, who says, “his motion is embarrassingly awful & should clearly be denied under current law.”
This is not just a legal observation. Partly, it’s box-ticking one. As I show below, Trump isn’t even addressing all the allegations against him.
As DOJ noted in the response to Trump’s MTD for Absolute Immunity, Trump totally misrepresented the indictment. As DOJ laid out, the indictment consists of four charges — three of them, conspiracy charges (18 USC 371, 1512(k), and 241). For each of those charges, DOJ alleged that Trump used five means of pursuing that conspiracy, laid out as five bullet points in the indictment. Those five bullets read:
a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant. [state]
b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6. [fake electors]
c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors. [Jeffrey Clark]
d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused. [PenceCard]
e. After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd–including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results–violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims. [mob] [red brackets my own]
Here’s how DOJ described the indictment in their response to Trump’s Absolutely Immunity filing.
A grand jury charged the defendant in a four-count indictment. ECF No. 1. The defendant moved to dismiss the indictment on the ground that he “is absolutely immune from prosecution.” Mot. 1. When considering a motion to dismiss, the Court must view the indictment “as a whole[,] and the allegations must be accepted as true.” United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022) (internal quotation marks omitted).
Count One, which charges a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, alleges that the defendant, then a candidate seeking re-election to the presidency, conspired with, among others, several individuals outside the Executive Branch to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” ECF No. 1 at ¶¶ 1, 7, 8. The indictment further alleges that the defendant aimed at accomplishing the conspiracy’s objectives in five ways: [state] using deceit toward state officials to subvert the legitimate election results in those states, id. at ¶¶ 13-52; [fake electors] using deceit to organize fraudulent slates of electors in seven targeted states, and cause them to send false certificates to Congress, id. at ¶¶ 53-69; [Jeffrey Clark] leveraging the Department of Justice to use deceit to get state officials to replace the legitimate electoral slate with electors who would cast their votes for the defendant, id. at ¶¶ 70-85; [PenceCard] attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and [mob] exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at ¶¶ 106-124. Counts Two and Three, which incorporate allegations from Count One, charge conspiracy and substantive violations of 18 U.S.C. § 1512(c)(2) for corruptly obstructing the certification of the presidential election results on January 6, 2021. Id. at ¶¶ 125-28. Count Four, which likewise incorporates the allegations from Count One, alleges that the defendant conspired to violate one or more person’s constitutional right to vote and have one’s vote counted. Id. at ¶¶ 129-30. [red brackets my own]
Get used to this paragraph: you’re going to see some version of it in the response to many if not all of the MTDs submitted last week.
To address the charges, you need to explain why each of those five means don’t substantiate, either alone or in combination, the elements of the offense of the charges. Effectively, Trump has to show how these five means don’t prove the three different ways they have been charged criminally.
One reason you have to address the alleged means of conspiracy is that First Amendment protected activities, if they are part of a conspiracy, may be included as overt acts in that conspiracy. Scores of January 6 defendants have already made the same First Amendment argument Trump is, including some members of the Proud Boys and Oath Keepers who, like Trump, didn’t breach the Capitol. But if DOJ can prove speech was part of a conspiracy, that speech can come in as evidence of that conspiracy. Trump’s MTD on Constitutional Grounds, for example, which is substantially the same argument about the First Amendment that has already failed for other Jan6ers, names each of the crimes alleged.
These points are not in dispute. Nonetheless, in an astonishing display of doublethink, the prosecution simultaneously claims that President Trump—simply by speaking his mind and petitioning for a redress of grievances—also somehow conspired to “defraud the United States,” “oppress rights,” and “obstruct an official proceeding.” Id. at ¶ 5–6, 125–130.
Then, purportedly citing to the five bullets that describe the means, he spins the five means as giving voice to concerns about election integrity, not his unlawful goal of trying to invalidate the votes of 81 million Biden voters.
As the indictment itself alleges, President Trump gave voice to these concerns and demanded that politicians in a position to restore integrity to our elections not just talk about the problem, but investigate and resolve it. See id. at ¶ 10(a) (state legislators and election officials) act) [sic]; ¶ 10(b) (Vice President and other government officials); ¶ 10(c) (state officials); ¶ 10(d) (vice president); ¶ 10(e) (members of Congress).
This passage replaces the instrumentality alleged with the targets of what Trump calls persuasion. Trump correctly describes one target of the state means (but not the coercion involved). But then he spins the creation of fraudulent documents as, instead, an attempt to persuade Mike Pence. He redefines the hijacking of DOJ in order to make a seemingly authoritative false statement as an attempt to persuade state officials (long after the involvement of state officials was concluded). He describes efforts to get Pence to violate the law as instead an attempt to persuade him. And he calls a violent mob threatening to assassinate members of Congress as, instead, an attempt to persuade those members.
Trump is a con man. And his First Amendment argument is a breathtaking claim that the means he uses to sustain his con — including fraud and coercion backed by violence — are merely free speech.
To some degree, this quick sleight of hand doesn’t matter: In the discussion of the First Amendment that follows, he never returns to address the charges against him. As a result, Trump’s First Amendment argument is sloppy fluff compared to the First Amendment January 6 challenges that have gone before and will be before the DC Circuit by the time Trump goes to trial.
Having at least acknowledged the existence of all five “means” bullet points in his MTD on Constitutional Grounds (even if he redefined them as targets of persuasion), the section of Trump’s MTD on Statutory Grounds addressing 371 pretends the indictment names just three means, not five.
As relevant here, the indictment alleges three types of conduct that supposedly involved making a false statement: (1) claims that the 2020 Presidential election was rigged or tainted by fraud or other irregularities, made both in public and in communications with public officials; [state] (2) organizing and submitting contingent slates of electors to the President of the U.S. Senate and the Archivist of the United States; [fake electors] and (3) making public claims about the scope of the Vice President’s legal authority with respect to the election certification. [PenceCard] [red brackets my own]
Trump doesn’t even pretend to address two of the five means alleged involve a conspiracy to defraud the government: the Jeffrey Clark and mob means. In the sections addressing 1512 and 241, Trump never revisits those other two means (or, in any specificity, the three he does include).
And that’s how, in the section on 1512 (an area where he could, but does not, piggyback on two years of determined work from other January 6 defense attorneys, including several who are members of his larger defense team), he claims he did nothing that could have obstructed the official proceeding — the January 6 vote certification — that he never even identifies.
As discussed above, lobbying members of Congress and state officials to act in a certain way when they conduct an official proceeding does not “obstruct” or “impede” that official proceeding. Nothing about lobbying Congress to act a certain way “places an obstacle” or “impediments,” “hinders … from action,” “gets in the way of the progress of,” “holds up,” or “blocks” Congress from acting. See id. at 1132, 1159. On the contrary, lobbying Congress to act in a certain way presupposes that Congress will conduct an official proceeding, and it seeks to persuade Congress to act in a certain way during that official proceeding. That is the antithesis of “obstructing” or “impeding” the proceeding.
Think about that! If Trump bothered to mention the vote certification, he would literally be claiming that he had absolutely nothing to do with its interruption on January 6, 2021. Nothing.
Even the illegal order to Pence, clearly identified as item 3 in Trump’s 371 section and a primary focus of both Judge David Carter’s opinion finding it likely this did amount to obstruction and the January 6 Report, is gone here. Jeffrey Clark never gets put back in. Most importantly, the obvious means of sending thousands of angry Trump supporters, many armed, to Congress to chase lawmakers out of their chambers remains absent from Trump’s discussion.
This is why (as I noted earlier) I think Trump is simply trying to make his incitement of actual mobsters go away with the Motion to Strike. His legal arguments ignore the incitement of the mob entirely, even after his recusal stunt introduced evidence of someone convicted under 1512, Robert Palmer, who said he committed crimes “at the behest” of Trump, even after his gag fight introduced evidence of a Jan6er stalking Obama immediately after Trump sent him.
To the extent that Trump’s MTDs don’t result in the wholesale dismissal of his indictment (and DOJ argued that by allegedly conspiring with five people outside of government, most of the allegations against Trump couldn’t be treated as official acts even if he did win the Absolute Immunity argument) Trump’s failure to address some of the means he allegedly used will lead to the failure of these efforts.
With the exception of the MTDs for Absolute Immunity (arguing that as a former President Trump, can’t be charged for things he did as President) and Selective Prosecution, these MTDs don’t attempt to argue that the entire indictment should be dismissed. And where in some cases he could make compelling arguments — I think the Jeffrey Clark means, for example, is particularly prone to legal challenge, though Trump barely addresses it — so long as you leave one of the means intact, you won’t succeed in dismissing the indictment.
In practice, the scope of what Trump actually addresses in his MTDs looks something like this:
Not only doesn’t Trump ever address the indictment as alleged (DOJ notes that a Motion to Dismiss must accept the facts alleged as true), but in none of these MTDs does he address all the means alleged. The only place he fully deals with the Jeffrey Clark allegation (which, again, I think is the most susceptible to legal challenge) is in the Absolute Immunity filing that is weak for other reasons. The only place he deals with the mob means is in the Motion to Strike, his legal effort to sweep his role in the violence all under the rug.
If his effort to do that — to remove the descriptions of his own role in the violence from the indictment with his Motion to Strike — fails, then that means alleged in the indictment will survive no matter what else happens.
To be sure, these MTDs have no bearing on whether he’ll ultimately be successful. Trump doesn’t need any of these MTDs to succeed to be acquitted. There will be a contentious fight about admissible evidence and arguments, where this First Amendment argument will be even more contentiously argued than it is here. The fight over advice of counsel arguments has already started, And ultimately he only needs to find one MAGAt willing to ignore all evidence to keep on a jury.
But the big gaps in Trump’s MTD arguments, to say nothing of the way he spins having his campaign submit fraudulent documents to NARA and Congress, seem to reflect points where even his lawyers recognize his case is so weak they just won’t bother — they’ll just try to sweep it all under the rug some other way, like that Motion to Strike.
Again, even if this goes to trial in March as currently scheduled, Trump needs only persuade one voter. If he can use these court filings as a means to delay that trial and as campaign props to win the election, these weak points won’t matter.
Update: Corrected trial date, which is scheduled to start on March 4, per Sean Sullivan.
DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.
It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.
With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.
The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.
9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”
The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).
Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.
Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.
But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”
The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.
[snip]
[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:
- The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
- In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
- Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
- Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.
In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.
This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.
More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.
Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.
As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.
President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).
Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).
One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.
At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.
To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.
But the timing matters for another reason.
Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.
[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.
When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.
[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.
This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8
Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.
7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.
8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).
In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.
Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]
Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.
As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”
Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.
As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.
On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).
In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]
John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.
Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.
Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.
111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.
113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”
Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.
But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”
John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.
There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.
Trump scolds that an impartial judge should express no opinion.
2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).
But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!
Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).
1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.
Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.
But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.
Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.
In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:
1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.
2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1
3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”
4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.
5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.
6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”
7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.
1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]
More importantly, there’s all the other video Chutkan had seen by October 28, 2022.
Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?
Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.
As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.
Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.
Yesterday, one day after Magistrate Judge Moxila Upadhyaya warned Trump not to engage in witness tampering, he posted first a video claiming that the prosecutors who are prosecuting him — none of whom Joe Biden appointed — were Biden’s accomplices in an attempt to win the election. He followed that with a tweet threatening, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
Shortly thereafter, two prosecutors who were career prosecutors in the Trump Administration before they came to report to Merrick Garland, Molly Gaston and Thomas Windom, filed a motion for a protective order. While the ostensible goal of the motion was to accelerate the process of sharing discovery in a way that won’t end up in a tweet somewhere, they did use it to alert Judge Tanya Chutkan of Trump’s tweet.
The Government’s proposed order is consistent with other such orders commonly used in this District and is not overly restrictive. It allows the defendant prompt and effective use of discovery materials in connection with his defense, including by showing discovery materials to witnesses who also agree to abide by the order’s terms. All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public. Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him. And in recent days, regarding this case, the defendant has issued multiple posts—either specifically or by implication—including the following, which the defendant posted just hours ago:
If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1070 (1991) (“The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial . . . obviously threaten to undermine this basic tenet.”). [my emphasis]
As I predicted, Trump quickly claimed the threat was about RINOs — even the Koch Brothers! — not the prosecutors prosecuting him.
Contrary to the claims of Trump and dozens of lawyers who haven’t read the indictment, it’s really not about his First Amendment right to lie, which is undoubtedly why he’s staging an early attempt to make this about his ongoing First Amendment right to lie.
Whatever. As I’m writing this I keep thinking about the line from the indictment describing that Trump tweeted his implicit threat against Mike Pence during the riot at a moment his advisors left him alone in his Dining Room: “after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification.”
The actual substance of the debate over the protective order will be genuinely interesting. Trump is running for office and he is entitled to attack Biden — albeit not physically. The motion described that prosecutors had proposed a recent protective order issued by Carl Nichols, a Trump appointee.
It’s likely that Judge Chutkan will call a hearing to deal with extrajudicial statements, while the lawyers fight about the protective order.
The whole predictable attack made me think, though, about Joe Biden’s role in all this. While the implicit threat against Jack Smith certainly threatens, “the fair administration of justice in this case,” the other prosecutors are not parties here. And there were no known witnesses included in Trump’s attack. Contrary to what Trump said, Biden has had no role in all this (in fact he should enjoin Trump from claiming prosecutors he didn’t appoint are his “accomplices”).
Depending on how DOJ conceives the 18 USC 241 charges, he could be Trump’s victim.
DOJ didn’t really lay that out in the indictment — whose votes Trump attempted to leave uncounted. Probably, as a Michigan mail-in voter (and in the county where Trump actually lost the election!), I’m among those people. I assume Rayne and bmaz are too.
But is Biden the victim here, too?
It won’t affect the resolution of this particular spat. But it does raise interesting questions about the structure of any gag going forward.
Update: Chutkan is not ordering Trump to explain his tweet.
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:00 PM on August 7, 2023, Defendant shall file a response to the government’s [10] Motion for Protective Order, stating Defendant’s position on the Motion. If Defendant disagrees with any portion of the government’s proposed Protective Order, ECF No. 10-1, his response shall include a revised version of that Protective Order with any modifications in redline.
As I noted here and here, on Monday, Judge David Carter ordered John Eastman to turn over most documents he had been trying to withhold from the January 6 Committee. That order found that it was likely that Trump and Eastman had conspired to defraud the US. But there was just one document turned over on the basis of crime-fraud exception: a document otherwise privileged under a work product claim that, Judge Carter ruled, could not be withheld because it was sent in the commission of the attempt to obstruct the vote count.
Here’s how Carter described the document:
In this email, a colleague forwards to Dr. Eastman a memo they wrote for one of President Trump’s attorneys.153 The memo sketches a series of events for the days leading up to and following January 6, if Vice President Pence were to delay counting or reject electoral votes. The memo clearly contemplates and plans for litigation: it maps out potential Supreme Court suits and the impact of different judicial outcomes. While this memo was created for both political and litigation purposes, it substantively engages with potential litigation and its consequences for President Trump. The memo likely would have been written substantially differently had the author not expected litigation. The Court therefore finds that this document was created in anticipation of litigation.
[snip]
The eleventh document is a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani.274 The memo recommended that Vice President Pence reject electors from contested states on January 6. This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.
274 4708. [my emphasis]
Carter’s decision and the release of documents has set off the usual wails about how much more proactive the January 6 Committee is than DOJ, replete with statements of fact — almost always people who haven’t done any work to understand what DOJ is really doing — that DOJ hasn’t taken steps to obtain such documents itself.
I’d like to look at four privilege reviews that implicate Rudy Giuliani and show that it is likely DOJ already has this document or at least ones that are related. Those reviews are:
As explained here, the David Carter opinion describes the judge’s privilege review of just four days of materials (January 4 to January 7, 2021) responsive to the January 6 Committee subpoena to Eastman. Carter went meticulously through seven categories of materials in Eastman’s possession and determined that just ten documents could be withheld under a work product claim and one — document 4708 — had to be turned over under a crime-fraud exception.
Carter ruled the document — an email chain that forwarded a memo written for Rudy to Eastman — was excepted under a crime-fraud exception because, the judge described, it sought to transform Eastman’s Electoral Count Act scheme “into a day-by-day plan of action.” Eastman didn’t write it. Rather, because the document was created for Rudy, Carter treated it along with four others, “created by or for agents of President Trump or his campaign, including attorneys of record in state cases and President Trump’s personal attorney.” [my emphasis]
References to the document explain that Eastman claimed attorney-client privilege over the document (fn 81, 125) and someone wrote “PRIVILEGED AND CONFIDENTIAL” in email text (fn 101).
Carter’s review of the document is particularly valuable for how he dismisses Eastman’s attorney-client privilege claim: In hundreds of pages of briefing, Eastman provided no evidence that its sender was affiliated with the Trump campaign or was covered by Eastman’s own claim to be representing Trump.
Dr. Eastman claims attorney-client privilege over only nine documents: five emails125 and four attachments.126 None of these documents includes Dr. Eastman’s client, President Trump, as a sender or recipient of the email. Instead, all emails are sent from a third party to Dr. Eastman, and two of the emails blind copy (bcc) a close advisor to President Trump.127
Despite having filed nearly a hundred pages of briefing, Dr. Eastman does not mention this third-party email sender anywhere in his briefs; the person is named only in his privilege log entries. Dr. Eastman’s description in the privilege log is conclusory, describing the sender merely as his “co-counsel.”128 Dr. Eastman failed to provide retainer agreements or a sworn declaration that would prove this third party was an attorney or agent for President Trump. The Court also cannot infer the third party’s affiliation with President Trump from his email, which is a generic, [email protected] email address. Dr. Eastman has not met his burden to show that these communications were with an agent of President Trump or the Trump campaign, and as such, these documents do not warrant the protection of the attorney-client privilege.
In other words, there was someone involved in relaying a memo originally written for Rudy to Eastman that Eastman didn’t want to or couldn’t argue was a Trump lawyer. And that’s why this attorney-client privilege claim failed. That’s an important detail because — as we’ll see — Bannon tried something similar.
Now let’s turn to Rudy’s phones. As I keep explaining, while the known warrants used to seize Rudy’s phones cover his Ukrainian influence peddling and cover a time period from May 1, 2018 through December 31, 2019, SDNY got Judge Paul Oetken to approve a Special Master review that covered the period from January 1, 2018 through the date of seizure, April 28, 2021. Special Master Barbara Jones’ review is only for privilege claims (including Executive privilege and attorney-client at least), not for responsiveness to any subpoena, so the end result of her review will result in turning over all non-privileged content on Rudy’s devices from that 28-month period.
That means if the person who created the memo forwarded as part of document 4708 sent it to Rudy on one of the devices that were seized, then the underlying memo would be included in the Special Master review.
We don’t know how DOJ has prioritized this review. We know only what is in this and earlier reports, which I’ve captured in this table.
Jones did an initial review, covering the entire timeframe (that is, post-dating January 1, 2018) of 7 devices, from which she found 3 documents about which she had some question, but ultimately deemed them privileged and turned over 2,000 other items.
Then, seemingly in parallel, she did a review of Device 1B05 (a cell phone) and 8 other devices. For the 8 devices, her review covered only the period of Rudy’s Ukrainian influence peddling. But for Device 1B05, Jones’ review covered the full 28-month period, meaning it would include any texts or messages sent on or pertaining to January 6.
I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1
Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.
1 Additional non-designated items were released on January 19, 2022.
Device 1B05 was the only one for which Jones disputed the original privilege claims made by Rudy and his attorney Robert Costello. Of 40 items, Jones agreed with their privilege claim. Of 19, Costello withdrew the claim. And of 37, Jones told Costello she disagreed, after which Costello decided not to fight her ruling.
While these discussions were going on, Judge Oetken issued a ruling that, if Rudy wanted to challenge Jones’ rulings, they’d have to make their legal arguments (but not the content of the contested communications) public. During the Michael Cohen privilege review, such a decision led Cohen and Trump to drop privilege claims, probably over the crime-fraud excepted hush payment communications, and that may be what happened here.
Whatever happened, we know that, with the exception of 43 items, any January 6-related communications that were on half of the 16 phones seized from Rudy would have been turned over to the FBI for a scope review. To be clear, investigators wouldn’t be able to access those comms unless they got a separate warrant for them, but we would never know (short of an indictment relying on them) if they had.
None of that guarantees that the memo forwarded with Eastman’s document 4708 is in DOJ possession. If the person who wrote it emailed it, it would not necessarily be on the seized devices. (Though if DOJ had a January 6 warrant for Rudy’s phones, they presumably would have obtained one for his email and iCloud as well, as they did with his Ukraine investigation.) If the person delivered it by hand, it would not be on the devices. And it’s possible that Costello made a more compelling argument than Eastman did that the sender was covered by a privilege claim tied to Trump.
We don’t know what kind of wild privilege claims Robert Costello was making as part of the privilege review of Rudy’s devices (which started in earnest in September 2021). But we do know what kind of wild privilege claims Robert Costello was making for another of his clients, Steve Bannon, in discussions of how to respond to a subpoena from the January 6 between October 5 and 19, 2021. He provided those details (including two 302s from interviews at which FBI agents were present) in a bid to claim he — Costello — was unfairly targeted as part of DOJ’s investigation of Bannon’s contempt (see this post for details).
In Costello’s interviews, he was all over the map about whether Bannon could invoke Executive Privilege. He said that according to some OLC opinions, Bannon did not have to be a government employee to receive “protections” under EP, and that “TRUMP had the right to claim it for BANNON.” He said that 10 of the 17 items on the Jan 6 subpoena were covered by EP. He admitted EP did not cover a request for comms involving Scott Perry and “it would take a ‘creative argument’ to apply Executive Privilege to that particular item.” He admitted, too, that comms with the Proud Boys wouldn’t be covered by EP if such communications existed. He said that EP claims should be worked out between Trump and the Committee. He said he had told Bannon that Bannon could not invoke EP because “that authority belongs to the President.”
Ultimately, though, Costello admitted that Trump’s attorney Justin Clark never reviewed anything Bannon might have claimed privilege over and refused several requests to contact the Committee himself about EP.
COSTELLO did not provide any documents to attorneys representing former President Trump for review to determine if Executive Privilege covered the documents. At the time, COSTELLO did not know what attorneys were representing others who had received Select Committee subpoenas.
COSTELLO asked CLARK to reach out to the Select Committee and to directly express to the Select Committee what COSTELLO and BANNON were confused about in regards to Executive Privilege. COSTELLO estimated he requested this of CLARK approximately two or three times; however, CLARK did not reach out to the Select Committee. COSTELLO did not have prior knowledge of the lawsuit of former President TRUMP.
[snip]
CLARK would not identify for COSTELLO what would be covered under Executive Privilege and that CLARK left that determination up to those who had received the Select Committee subpoena. CLARK also refused to reach out to the Select Committee on behalf of COSTELLO or BANNON.
[snip]
COSTELLO did not provide or offer any documents to attorneys representing former President TRUMP to review for Executive Privilege.
In a follow-up, Costello effectively admitted there was no concrete record that Trump had invoked EP.
Costello stated that Justin Clark (Clark) was trying to be intentionally vague; however, Costello was clear former President Donald Trump (President Trump) asserted executive privilege with regard to Bannon.
When DOJ asked Costello for a letter indicating that Clark had invoked EP for Bannon, he had nothing specific.
Then there was the matter of Bannon’s podcasts. Costello ceded they weren’t covered by privilege, but only because they were public (!!!!), and appears to have just assumed the Committee would go get them on their own.
With regards to responding to the Select Committee’s request for documents, COSTELLO planned to send a link to the website hosting all of BANNON’s publicly accessibly podcasts.
[snip]
The podcasts requested could be obtained by the Select Committee off the internet, and since they were in the public domain, the podcasts also were not covered by Executive Privilege.
[snip]
COSTELLO admitted he did not have a good answer as to why he didn’t disclose to the Select Committee that the podcasts were in the public domain and BANNON was not required to respond to that particular item. COSTELLO believed the particular requests regarding the podcasts was just a “bad request” by the Select Committee.
The most telling piece of advice given by the lawyer Bannon shares with Rudy — one that goes to the heart of what Costello might have done in discussions taking place at the same time about privilege with SDNY — was that Bannon, who is not a lawyer, could claim attorney-client privilege over items requested in item 17 of the subpoena, which asked for,
Any communications with Rudolph Giuliani, John Eastman, Michael Flynn, Jenna Ellis, or Sydney Powell about any of the foregoing topics.
Costello claimed these such communications, including those with Mike Flynn or Sidney Powell, would be covered by attorney-client or work product privilege.
COSTELLO believed that the request listed as number 17 involved information over which BANNON could assert attorney-client privilege given it included a request for communications between BANNON and RUDOLPH GIULIANI, JENNA ELLIS, and other attorneys who were working for former President Trump.
[snip]
COSTELLO believed item 17 was covered by attorney-client privilege or by attorney work product protections. Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.
There’s so much crazy-train about this last bit. After stating over and over that Clark refused to invoke EP, Costello then admitted that Clark wanted Bannon to withhold communications involving Rudy, Eastman, Powell, and Mike Flynn. Costello admitted Flynn (like Bannon) was not a lawyer, but was still prepared to claim attorney work product over comms with him anyway. But the thing I can’t get enough of is that Rudy’s lawyer Robert Costello was claiming that Sidney Powell — who, in a written statement issued on November 22, 2020, Trump’s lawyer Rudy Giuliani made very clear did not represent Donald Trump — represented Donald Trump.
Still, all this crazy train amounts to non-lawyer Bannon, advised by the lawyer he shares with Rudy, making the same claim that lawyer John Eastman had made regarding “war” planning leading up to January 6; that such documents were covered by work product privilege. That’s the same claim that Judge Carter just applied a crime-fraud exception for.
I’m guessing Costello attempted to make similar claims with Barbara Jones in SDNY and I’m guessing that Jones pointed out that Bannon and Flynn aren’t lawyers and Rudy was quite clear that Powell was not Trump’s lawyer. In other words, I think it likely that some of the claims Costello withdrew are similar to those that Eastman failed with. If that’s right, it increases the chance Document 4708 would be turned over to DOJ.
And then there’s the Kraken lady.
We don’t know the full scope of the grand jury investigation into Powell, aside from the fact that Molly Gaston, who is supervising the Bannon prosecution, is also involved in it (which means she’d have visibility on the overlap between the two, and would know that Trump’s lawyer tried to withhold comms involving Powell without invoking privilege). The subpoena requests, at least, cover the finances of her Defending the Republic “non-profit.”
The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.
The investigation, then, would cover activities that are tangential to the January 6 subpoenas to Bannon and Eastman.
But the fact that there’s a grand jury investigation into Powell makes it exceedingly likely DOJ got a warrant for her emails.
She has a valid privilege claim covering communications with Mike Flynn for some of this period. But thanks to Rudy’s public statement, she has no privilege covering her actions for Trump.
Chances are pretty good she received a copy of the memo for Rudy too (if the memo wasn’t written by someone with closer ties to Powell than Rudy).
I think it’s likely that DOJ has multiple copies of document 4708, probably via Rudy, Bannon, and Powell, if not Eastman himself (getting it from Chapman U would always have been easy to do with a gag, and would be still easier now).
What’s clear, though, is that the lawyer that Rudy and Bannon share is making privilege claims every bit as absurd as the ones Carter just rejected, and with Bannon, there’s no question about privilege claims.
In a reply motion demanding to know why DOJ subpoenaed the toll records for him, the lawyer Steve Bannon shares with Rudy Giuliani, Robert Costello, claims DOJ obtained the email information, including hundreds of pages from Google, for different Robert Costellos, not him.
The hundreds of pages of email information they obtained from Google, including email addresses (and IP addresses) of the sender and recipient, date and time of the emails, metadata, social media and meeting (Google Hangouts) data, information as to whether each email was read, remained unread, was deleted, or what filing box the recipient put it in, and more [See e.g., 0011510001249; 001339-1732] were all for another completely uninvolved citizen apparently named Robert Costello or Robert M. Costello. In fact, not one of the email accounts the Government sought access to in this case, intending to get defense counsel’s emails, actually was defense counsel’s email account.
He even issued a declaration stating, among other things, that,
I have no association whatsoever with email accounts with the addresses “[email protected],” or “[email protected],” or “[email protected],” or “[email protected].”
We shall see how the government explains this claimed mix-up, assuming Judge Carl Nichols permits them to file a surreply (Costello claims he only just discovered these weren’t his emails after reviewing them for months).
That said, Costello did not deny association with email accounts with the addresses of, [email protected], [email protected], or [email protected], which appear to be included in the friends and family accounts of the main Gmail account in question. And though Costello claims to provide the exhibits to back his claims, he doesn’t provide the Comcast return and doesn’t provide back-up for the bulk of the returns he is complaining about (US 001339-001732 below).
What Costello has also shown is that, in a memo to DOJ, he claimed to quote from a letter from Justin Clark, who would have been acting as Trump’s lawyer, invoking privilege on Trump’s behalf.
“President Trump vigorously objects to the overbreadth and scope of these requests and believes they are a threat to the institution of the Presidency and the independence of the Executive Branch.” Mr. Clark added that:
“Through the Subpoenas, the Select Committee seeks records and testimony purportedly related to the events of January 6th, 2021, including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others, the presidential communications, deliberative process, and attorney-client privileges. President Trump is prepared to defend these fundamental privileges in court.
As I’ve previously noted, at a meeting on November 3 at which Costello was supposed to be presenting that memo, Costello alternately claimed:
In that November 3 meeting, Costello said he’d provide all the backup to support his claims.
But when JP Cooney asked for all the documents Costello claimed to be relying on in the memo and an interview with DOJ and the FBI on November 3, 2021, Costello said, “as soon as I locate the letter I received from Justin Clark, acting as counsel for President Trump, I will forward that under separate cover.” Cooney responded, making sure, “please review and let us know if this constitutes your entire production.”
There’s no evidence in this filing that Costello ever provided it.
Which may be why, in a follow-up interview on November 8 — after searching and (at least as this record shows) not finding any letter from Clark — Costello told DOJ:
There are additional discrepancies disclosed by the materials Costello has included.
In his declaration, Costello (who, remember, was investigated as part of the Mueller investigation for helping to dangle pardons) complained that this meeting to stave off an indictment didn’t work like all the previous times he had had such meetings.
[I]t is clear to me that the representatives of the United States Attorney’s Office for the District of Columbia never had any intention of engaging in a lawyer like discussion of the legal merits of a prosecution of Mr. Bannon for criminal contempt of Congress. This position was and is shocking to me because of the many prior instances when this same Office declined to prosecute others, including sitting United States Attorney Generals based upon a referral from Congress.
There’s more: For example, Costello misrepresents when he joined Bannon’s defense team for this.
But the key detail is that Costello claimed to have a letter from Trump invoking Executive Privilege. And when DC USAO asked to see it, Costello changed his story.
Update, April 19: I’ve updated the timeline below with two documents DOJ submitted on April 15. They raise further inconsistencies in Costello’s statements to the FBI and DOJ in his interviews.
US 001093: Grand jury subpoena
US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021. Returns include:
US 001769-001789: Costello’s 302s
US 001808: Yahoo return
US 001833-001878: Subpoenas for home, direct office, and cell phone from September 1 to October 20, 2021
US 001834: Case number
US 001842: Case number
US 001863: Subscriber record showing payment method for Costello’s cell phone
US 001866: Costello’s data usage
US 001872; Grand jury subpoena
US 001874-001875: SMS (text messaging) information, including the numbers to which texts were sent and from which they were received
March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)
September 22: First contact between J6 and Bannon
September 23: Bannon subpoena
September 24: Costello accepts service
October 5: Media reports on subpoenas to Mark Meadows and others; call from Justin Clark
October 6: Clark instructs Costello to invoke whatever privileges he can, including executive, deliberative, and attorney-client
October 6: Costello claims Clark invoked privilege; Costello’s memo quotes Clark invoking privilege; undated call with Tonolli (actually on October 12)
October 7, 10AM: Original deadline for document production
October 7, 5:05PM: Costello letter claiming Trump invoked privilege
October 8: Thompson letter to Bannon rejecting non-compliance
October 12: Call with Tonolli re representation from Trump
October 13: Costello and Clark speak
October 13: Second Costello letter, demanding accommodation with Trump
October 14: Clark corrects Costello that he had simply reiterated his October 6 letter
October 14, 10AM: Original date for Bannon testimony
October 15: Thompson letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM
October 16: Clark emails Costello stating clearly that he had not told him he had immunity from testifying
October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues; Costello claims he sent a note to Thompson;
October 18, 6:50 PM: White House says no privilege after 2017
October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt; Thompson letter to “change course”?
October 20: Rules committee meeting to hold Bannon in contempt
October 21 Bannon held in contempt
October 25: Costello email exchange with Cooney (and Phillips); Costello asks for meeting after October 27
October 28: Matthew Graves confirmed as US Attorney
October 29: Cooney suggests November 3
November 1: Costello emails memo arguing against prosecution, dated October 29
November 2: Kristin Amerling interview
November 3: Costello informs he’ll be joined by Katz; First interview with Robert Costello; Cooney follows up asking for documents
November 4: Cooney asks Costello to confirm full production
November 5: Matthew Graves sworn in as US Attorney
November 8: Second interview with Robert Costello
November 11: Subpoena to Internet provider
November 12: End date for Costello records request
November 12: Indictment
November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance
November 18: At status conference, government says there are just 200 documents of discovery
December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense
December 7: Returns on Internet provider (623 pages)
December 7 to 16: Bannon refuses to submit joint status report
January 4: DOJ turns over 790 pages of records from Costello
January 6: Bannon request for more information on Costello
January 7: Government response to Bannon request
January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello
January 28: Government response to discovery demand
February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello
In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.
On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.
But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.
Among the things included in the referral are:
- A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
- Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
- Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
- A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
- Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
- A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
- Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
- Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too
This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.
If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.
As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.
Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.
So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.
When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.
The answer is clear. Doing so will make any ongoing investigation far more difficult.
We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.
In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:
In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.
Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).
Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.
And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.
Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.
There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.
Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.
And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.
Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.
