Jack Smith just requested and got a consent motion to file a status report “or otherwise inform” Judge Tanya Chutkan of what they’re going to do with the January 6 case.
As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy. By December 2, 2024, the Government will file a status report or otherwise inform the Court of the result of its deliberations. The Government has consulted with defense counsel, who do not object to this request.
If that “otherwise inform” is a report, it would be done in plenty of time for Dick Durbin to hold a hearing.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-11-08 13:22:022024-11-08 13:22:02Jack Smith Asks for Three Weeks
There is a transcript in the mostly sealed Appendix I to Jack Smith’s immunity brief that must be Chesebro’s. Several passages describing events in which Chesebro was involved cite a transcript, spanning from roughly GA 97 to GA 103, that appears between Lee Chatfield and probable Pat Cipollone transcripts (GA 55-56 is someone whose name appears alphabetically between Bowers and Cannon; this may be Trump campaign staffer Michael Brown).
On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315
[snip]
Later that morning, [Chesebro] worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President.408
315 Documentary evidence, Presidential Daily Diary, GA 100-101
That would mean that this section, which suggests the co-conspirators deliberately lied to fake electors, is sourced partly to Chesebro too (GA 517-518 is part of an at least 6-page section describing the fake elector involvement of someone whose name appears alphabetically between Raffensperger and Scavino, which hypothetically could be Mike Roman, but nothing marks it as necessarily him).
In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way that the defendant and [Eastman] deceived [Ronna McDaniel] by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant’s favor.282
282 Documentary evidence, GA 97-98, GA 517-518.
It’s not terribly surprising that Jack Smith got an interview with Chesebro. After all, Chesebro made a great show of cooperating in various state investigations — at a minimum, Georgia, Nevada, Wisconsin, and Michigan, as CNN laid out last December. But as CNN also reported, the veracity of his testimony came into question by February, when CNN caught Chesebro covering up a Twitter account he had.
So Jack Smith appears to have gotten an interview with Chesebro, but Chesebro may not be terribly reliable.
Perhaps for that reason, there are a great many things involving Chesebro that are not sourced to that transcript. Chesebro’s plotting about the fake electors plot, for example, is always sourced to the documents themselves.
More interestingly, this passage — describing that Chesebro followed Trump’s public instructions to go to DC, but also describing that he collected copies of the fake Michigan and Wisconsin elector certificates and handed them off to Congressman Mike Kelly — is sourced entirely to documentary evidence.
Meanwhile, [Chesebro] who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist.389 [Chesebro] received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense.390 He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.391
Similarly, the description of Chesebro’s participation in the mob is sourced exclusively to documentary evidence.
Among these was [Chesebro] who had attended the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building.449
There’s a problem with Chesebro’s testimony on this point, of course: If he ferried fake elector certificates, then he wasn’t responding to Trump’s public tweeting about January 6. He was responding to the instructions of other plotters.
Which makes the way Smith sourced this passage, describing a December 16 meeting with Trump that Reince Priebus also attended, more interesting.
On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315 During the encounter, the defendant complained about Wisconsin Supreme Court Justice [Brian Hagedorn] who two days earlier had cast the deciding vote in rejecting the defendant’s election challenge in the state.316 As the group was leaving, the defendant spoke directly—and privately—to [Chesebro]. 317 As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, [Boris Epshteyn] wrote to [Chesebro] “Careful with your texts on text groups. No reason to text things about electors to anyone but [Eastman] and me.” [Chesebro] responded, “K,” and followed up, “I’m probably a bit paranoid haha.” [Epshteyn] wrote, “A valuable trait!”318
315 Documentary evidence plus Chesebro
316 Probably Reince Priebus
317 Probably Reince Priebus
318 Documentary evidence
That is, Smith relies on Chesebro for the claim that this meeting was a photo op. But he doesn’t include Chesebro’s claims about what he said privately to Trump; he relies solely on what is likely Reince Priebus witnessing, but not participating in, that conversation.
Rather than describing what Chesebro claimed he and Trump said to each other, Smith relies on what Chesebro told another lawyer (likely Jim Troupis), afterwards. As soon as Chesebro saw Trump’s tweet announcing the January 6 rally, he texted someone else and boasted that “we” had a “unique understanding” of Trump’s December 19 Tweet calling people to DC.
The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, ““. . . Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”319 When [Chesebro] learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique understanding of this.”320
Chesebro has testified about the December 16 meeting. TPM got his testimony to Michigan prosecutors. He described to them that he told Trump that the real deadline for certification was January 6.
Chesebro traveled to Washington to meet with Trump on Dec. 16 alongside a coterie of other Trump campaign attorneys.
Three years later, in the interview with Michigan prosecutors, Chesebro recalled the meeting with Trump: “The marching orders were, don’t say anything that would make [Trump] feel more positive than he did at the beginning of the meeting.”
He did not follow that advice. Chesebro told prosecutors that he began to speak with Trump after listening to the President talk on speakerphone with Newt Gingrich about something to do with Georgia voting machines. Then, the conversation turned to Trump’s chances in Arizona.
Chesebro did exactly what he had been told not to do: give Trump a sense of hope. He recalled telling Trump that the “real deadline” was Jan. 6. He was later admonished by former White House chief of staff Reince Preibus because, as Chesebro put it later to prosecutors, “the vibe that I had given him was some ground for optimism.”
Chesebro himself compared the meeting to a widely reported and infamous late-night encounter, two days later on Dec. 18, between Trump, Sidney Powell, former Overstock CEO Patrick Byrne, and the White House counsel’s office, saying that it was “sort of unauthorized.”
If Chesebro reliably told Jack Smith the same thing, it might strengthen the obstruction case. As it is, Jack Smith argues that the riot happened, Trump did nothing to stop it, and then he opportunistically targeted Mike Pence as his mob was hunting him down. He stops well short of saying he summoned the mob to overrun Congress.
Chesebro’s apparent unreliability may be preventing Jack Smith from taking the next step, showing that Trump heard from Chesebro on December 16 that there was still one more step to certification on January 6, which led him — less than three days later — to summon his mob. But if Chesebro’s testimony were more reliable, then he would not simultaneously be explaining that he ferried a second set of fake Michigan and Wisconsin certificates to DC but also simply showed up on January 6 in response to Trump’s Tweets. And it might change the import of the way he shadowed Alex Jones.
Still, as it is, Chesebro is central to the continued viability of 18 USC 1512(c)(2) and (k) charges. Under Fischer, there must be an evidentiary component to the obstruction charge. And in Chesebro, you have the sole member of the conspiracy who joined the mob on January 6 having earlier ferried fake elector certificates to members of Congress in hopes that Mike Pence would use the certificates to throw out Joe Biden’s votes.
If this ever goes to trial, Chesebro’s role — and possible testimony — may be key. But thus far, at least, it doesn’t appear that his testimony is reliable enough to build the case on.
https://www.emptywheel.net/wp-content/uploads/2023/08/Chesebro-Mug-Shot.jpeg10801080emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-28 09:08:542024-10-28 09:16:00Jack Smith’s Delicate Treatment of BadgerPundit Kenneth Chesebro
All of us who have followed this have concluded there’s not any new news (though the presentation of it reveals certain things about Smith’s investigation).
So why did Trump’s lawyers wail and wail about releasing these materials before the election?
Just days ago, after all, Trump’s lawyers argued that releasing these materials would alter the election.
It may be this:
As the appendix documents, on March 11, 2024, Trump posted to Truth Social that, along with closing the border and DRILL, BABY, DRILL, his first priority, Day One, was to free the seditionists and cop assailants who had fought for him on January 6.
Prosecutors cited that post to support their argument that Trump ratified the violence that day.
As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding,722 thus providing evidence of his intent on January 6.
The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence—all made while the defendant was a private citizen after the end of his term in office—are probative of his intent during the charged conspiracies.
722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022): GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, 7rump claims violence he inspired on Jan. 6 was Pence’s fault, WASH. PostT, (Mar. 13, 2023, 8:09 p-m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. [my emphasis]
The GOP candidate for President has a criminal docket. And in that criminal docket, today, the government included a post promising to free seditionists and cop-assailants with the same urgency with which Donald Trump promises to close the border. “My first acts,” the GOP standard-bearer stated, would include freeing the people who assaulted the Capitol on January 6.
This was the proposal back in March, one of the first things Trump did after Nikki Haley conceded. And since that time, the entire GOP has fallen into line behind that plan.
The Republican Party’s candidate for President is running on a platform of freeing cop assailants and seditionists.
There’s nothing new in this appendix. But that post does clarify things considerably.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-18-at-23.39.24-1.png4821120emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-18 19:59:132024-10-18 19:59:13Trump’s GOP Is Running on a Platform of Freeing Seditionists and Cop Assailants
There’s virtually nothing new here. Trump’s temper tantrum was little more than a public wail that if people saw already-public documents about his plotting to run fake electors, it would swing the election.
That said, there are a few things we can confirm from the structure of all this, which I’ll write up over the weekend.
Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.
He also presided over the Oath Keeper cases.
That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.
As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.
Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.
That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.
But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.
Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]
Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.
As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]
Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.
But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.
Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.
For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.
At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.
The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]
As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.
https://www.emptywheel.net/wp-content/uploads/2021/02/Screen-Shot-2021-02-10-at-9.37.01-PM.png9741708emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-16 12:24:152024-10-16 12:24:15Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022
Today was the deadline Judge Chutkan set for Trump to object to any of the specific redactions Jack Smith had proposed in the appendix to his motion on immunity.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Rather than object, Trump filed another whining complaint about the election. Predictably, he cited the ill-informed rants of Elie Honig and Jack Goldsmith.
There should be no further disclosures at this time of the so-called “evidence” that the Special Counsel’s Office has unlawfully cherry-picked and mischaracterized—during early voting in the 2024 Presidential election—in connection with an improper Presidential immunity filing that has no basis in criminal procedure or judicial precedent. President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Given that she again got no specific objections to the redactions Jack Smith opposed, Judge Chutkan approved the posting of the appendix (which must be about 1500 pages).
Defendant has now filed an opposition objecting to unsealing any part of the Appendix. ECF No. 259. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, Defendant “maintains his objections” to any “further disclosures at this time” for the same reasons he opposed unsealing the Motion, and he requests that “[i]f the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, . . . that the Court stay that determination for a reasonable period of time so that [he] can evaluate litigation options relating to the decision.” Id. at 1–2. For the same reasons set forth in its decision with respect to the Motion, ECF No. 251, the court determines that the Government’s proposed redactions to the Appendix are appropriate, and that Defendant’s blanket objections to further unsealing are without merit. As the court has stated previously, “Defendant’s concern with the political consequences of these proceedings” is not a cognizable legal prejudice. Id. at 4–5.
Accordingly, the Government’s Motion for Leave to File to Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, ECF No. 246, is GRANTED with respect to the Government’s proposed redacted version of the Appendix to the Government’s Motion for Immunity Determinations.
But she gave Trump a week to — as he described — “evaluate litigation options.”
The court will grant Defendant’s request for a stay so that he can “evaluate litigation options,” ECF No. 259 at 2, and hereby STAYS this decision for seven days.
I await the opinion of smart lawyers. But Judge Chutkan seems to be engaged in a bit of judicial rope-a-dope. The most obvious legal option Trump has is an Emergency Temporary Restraining Order against posting the appendix, but he has just foregone two opportunities to make specific objections. He would face an even bigger problem if he tried to get a writ of mandamus against Judge Chutkan, partly because he did have alternative recourse (specific objections) and partly because she’s literally doing what SCOTUS told her to do.
We shall see. For the moment, though, Trump seems poised to draw more attention to what was largely a restatement of what we already knew.
https://www.emptywheel.net/wp-content/uploads/2023/08/Tanya_Chutkan_U.S._District_Court_Judge.jpg578440emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-10 17:05:232024-10-10 17:09:10Trump Demands Emergency Appendix Surgery
After I wrote this post laying out that Elie Honig was not only wrong about Jack Smith’s immunity briefing, but that it was very likely DOJ had decided not to take certain steps in August because of the election, I thought about sending the post to Jack Goldsmith, because he tends to make claims about Jack Smith violating DOJ guidelines with little understanding of the facts.
Whereas Honig dedicated just one paragraph to asserting that the problem here lay in “new” disclosures,
The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.
Goldsmith repeated his claim that there were “new” disclosures in Jack Smith’s immunity filing four times, starting in the lead paragraph.
Last week a judge unsealed a 165-page legal brief with damaging new revelations about President Donald Trump’s efforts to overturn the 2020 presidential election.
[snip]
The brief he filed last week sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as “bombshell” new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of an election. However, the “rule” is unwritten and, as the inspector general made clear, has an uncertain scope.
[snip]
Perhaps the department thinks the new disclosures are marginal and won’t affect the election, or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.
[snip]
Because it didn’t need to disclose the new details now, and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy.
Much of the evidence against Trump in the case had already become public, either through previous filings, news reports or an extensive congressional investigation into the events of Jan. 6.
Tellingly, while NYT devoted a section of their four takeaways piece to “new” evidence, they specifically said none of this was “game-changing.”
The prosecutor revealed new evidence.
The brief contained far more detail than the indictment and included many specific allegations that were not previously part of the public record of the events leading up to the attack on the Capitol by a mob of Trump supporters on Jan. 6, 2021.
None of the new details were game-changing revelations, but they add further texture to the available history. For example, part of the brief focuses on a social media post that Mr. Trump sent on the afternoon of the attack on the Capitol, telling supporters that Vice President Mike Pence had let them all down.
Mr. Trump was sitting alone in the dining room off the Oval Office at the time. According to the brief, forensic data shows he was using the Twitter app on his phone and watching Fox News. Fox had just interviewed a man who was frustrated that Mr. Pence was not blocking the certification and then reported that a police officer may have been injured and the protesters had breached the Capitol.
Mr. Trump posted to Twitter that Mr. Pence had lacked the “courage” to do what was right. The mob became enraged at the vice president, and the Secret Service took him to a secure location. An aide to Mr. Trump rushed in to alert him to the peril Mr. Pence was in, but Mr. Trump looked at the aide and said only, “So what?” according to the brief. [my emphasis]
And much of this isn’t new.
We learned prosecutors were going to rely on forensic data from an expert notice submitted in December. The original indictment revealed that Trump was alone in his dining room when he sent the Tweet targeting Mike Pence. The superseding indictment added to the existing description in the original indictment that Trump was “watch[ing] events unfold” that his TV was showing “live coverage.” If you couldn’t already guess that meant he was watching Fox News, the January 6 Committee told us that in hearings and their final report. The actual content shown on Fox News at that moment is new to court filings, but it is publicly available. The Tweet itself, of course, has been discussed in detail starting from Trump’s impeachment. The Nick Luna comment, “So what?”, is new, but simply a better sourced version of Cassidy Hutchinson’s far more damning hearsay testimony of Mark Meadows telling Pat Cipollone that Trump thought Pence “deserves it” even as his supporters chanted “hang Mike Pence.”
The CNN piece that Honig linked to substantiate his claim this was new described that the filing provided “fullest picture yet of [Jack Smith’s] 2020 election case,” not that these were bombshells. It described “new” details to include:
Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.
Those details of Trump’s phone usage — as I noted above — were actually covered in earlier filings and even the indictments. The one new attribution to a conversation with Trump’s family members — the “fight like hell” claim — is important mostly because it echoed the very public exhortation in the January 6 speech we all saw four years ago. And virtually all the references in the brief about Trump’s frayed relationship with Pence are parallel sourced to Mike Pence’s book, published years ago.
What Goldsmith cites instead of the NYT, where his op-ed was published (which, many people complained, didn’t play up the brief enough), was this ABC story. It promises stuff that is new, but then lists a bunch of stuff we knew already.
Special counsel Jack Smith has outlined new details of former President Donald Trump and his allies’ sweeping and “increasingly desperate” efforts to overturn his 2020 election loss, in a blockbuster court filing Wednesday aimed at defending Smith’s prosecution of Trump following the Supreme Court’s July immunity ruling.
Trump intentionally lied to the public, state election officials, and his own vice president in an effort to cling to power after losing the election, while privately describing some of the claims of election fraud as “crazy,” prosecutors alleged in the 165-page filing.
And it doesn’t substantiate its claims that this stuff is new.
For example, the immunity filing explains how prosecutors know that Trump called Sidney Powell “crazy:” after Tucker Carlson ripped her to shreds, Trump let Dan Scavino and P7 — who may be Hope Hicks — listen to a conversation with Powell on speakerphone while he mocked her. That he called her crazy was included in the original indictment’s description of Powell.
One other thing some blow-ins to this story claimed was new — Mike Roman’s instruction to “Make them riot” — was also something already revealed in a December filing.
What Honig and Goldsmith are all worked up about is not new news, but editors who, trying to hype stories about this filing, felt the need to oversell the amount of new news in it.
Their concern arises out of click-bait, not the substance of the immunity filing itself.
And from that, Goldsmith scolds that Smith should have justified filing this brief in response to an order from Judge Chutkan.
[T]he department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake.
Only, even Goldsmith’s claim that the department didn’t justify its actions is not entirely accurate.
Jack Smith hasn’t told us what internal DOJ deliberations were. But he did publicly reveal that before he did anything in the wake of the SCOTUS remand, he spent most of a month “consult[ing] with other Department of Justice components” regarding DOJ “rules, regulations … and policies” about “the most appropriate schedule” moving forward.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
DOJ is never going to reveal these deliberations (and Jack Goldsmith knows that better than most, given the number of far more important internal deliberations involving Goldsmith himself, dating to two decades ago, that we’ve never been allowed to and won’t ever be allowed to see).
But they did tell us they engaged in them. Jack Smith literally told us that he was spending weeks consulting about how to comply with DOJ policies regarding timing even before he superseded the indictment.
Only that detail — the one that they keep harping about — appears to be news to Honig and Goldsmith.
So chalk this up to yet another instance where the people complaining about what Jack Smith did, instead, only reveal they don’t know what Jack Smith did.
Update: Trump submitted, under seal, another request not to have any evidence released before the election. It cites both Honig and Goldsmith. Neither, of course, address the point Trump claims to be making.
President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Trump’s deadline to submit objections to Jack Smith’s proposed redactions is today at 5PM ET. Last time, when Trump made no substantive suggestions, Judge Chutkan released the file.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-09 10:10:112024-10-10 16:35:02Bombshell “New[s]:” Jack Smith DID Consult about Timing before Adopting Post-SCOTUS Path
There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.
More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.
That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.
Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.
He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.
The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.
9-85.500 Actions that May Have an Impact on an Election
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See§ 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.
Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.
The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.
First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.
Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?
It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.
The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.
A still more obvious thing missing from the immunity filing is the Proud Boys.
Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.
The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.
[snip]
Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]
But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.
To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.
In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484
But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).
478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).
479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).
480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).
481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).
482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).
483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).
484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).
If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.
Unless you were holding them in reserve.
The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.
In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]
Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.
The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.
[seven lines redacted]
The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]
As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.
They’re both just “persons.”
At least in substitutions used in this filing.
Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.
Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.
October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
January 5: Call with Trump before “All hell is going to break loose.” J6C
Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).
One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.
The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.
Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.
Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.
[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”
So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).
But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.
The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376
That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.
The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.
Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.
But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.
Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.
Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.
These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.
Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.
If we get that far.
https://www.emptywheel.net/wp-content/uploads/2023/08/Mike-Roman-Mug-Shot.jpeg10801080emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-06 10:23:392024-10-06 11:24:36All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t
If this thing were ever to go to trial, such a document would focus more on the elements of the offense that Judge Chutkan would have jurors assess, which I laid out here. While there’s extensive discussion of the Electoral Count Act, particularly regarding the intentional exclusion of the President from it, there’s less discussion of how Trump’s lies impaired its function, the crime charged under 18 USC 371. While there’s a discussion of the intent behind the fake electors plot, there’s less discussion of how those fake certificates served to impair the function of counting the real certificates (a point Trump made in his post-Fischer supplement to his motion to dismiss the indictment on statutory grounds), something that would be key to proving the two 18 USC 1512 charges. There’s little discussion of the victims — 81 million Joe Biden voters — whose rights Donald Trump allegedly attempted to violate in the 18 USC 241 charge.
Jack Smith is not exactly telling us how he’d prove his case. Rather, he’s asking for permission to use certain kinds of evidence to do so.
There’s no telling how SCOTUS will respond to this (I’m particularly interested in the tactical decision to call the Brooks Brothers Riot, “a violent effort to stop the vote count in Florida after the 2000 presidential election,” in a filing that aims to persuade John Roberts, Brett Kavanaugh, and Amy Coney Barrett.) Prosecutors have raised the cost for Roberts et al, by laying out that their immunity argument basically argues that it is the job of the President of the United States to send mean Tweets eliciting violent threats against members of his own party.
Now that Trump got permission to submit a sur-reply, his team is likely to frame this entire argument anew, as they wanted to do from the start. Given what they’ve said, I would assume their 180-page brief will focus extensively on the chilling effect it would have to hold a former President accountable for almost getting his Vice President killed. Once they prove that, Trump’s lawyers have argued, the entire indictment must be scrapped, because grand jurors were exposed to immunized behavior.
On that point: It seems that the brief relies on immunized conduct that was not shared with the grand jury. This appears most obvious in the footnote where the government says that part of a conversation Mike Pence had with Trump on December 19 is official conduct, but they don’t plan to share it with jurors. A more interesting instance, however, is the reliance on Pat Cipollone’s testimony that, after he showed up to the January 4 meeting at which John Eastman attempted to persuade Pence to throw out legal votes, Trump “explicitly excluded him from” the meeting. Under SCOTUS’ guidelines, that conversation presumably shouldn’t have been presented to grand jurors, but it is powerful evidence that the January 4 meeting was not official business.
The most notable new evidence in the filing is another example. Minutes after Trump sent the Tweet targeting Pence during the riot, the brief describes, Person 15 (Nick Luna), rushed into Trump’s dining room to tell him that Pence had been taken to safety, only for Trump to respond, “So what?” Prosecutors are only using that evidence, they explain, to contextualize the Tweet Trump had just sent, to make it clear it was a private Tweet. “The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet.” Luna probably alerted Trump imagining he might take official action to protect his Vice President, so this would be an official act. Jurors will never hear that testimony, but we get to, as do John Roberts and his colleagues.
Mike Pence
Caveating that I expect Trump to throw the kitchen sink at the Pence issue, I think Smith does fairly well rebutting the presumption of immunity in Trump’s communications with Pence. That analysis relies heavily on the deliberate exclusion of the President from tallying the vote, supporting a conclusion that “it is difficult to imagine an occasion when a President would have any valid reason to try to influence” the certification of the vote (meaning relying on Trump’s discussions with Pence wouldn’t chill valid Presidential communications). It also relies heavily on Blassingame’s holding — one not explicitly adopted in SCOTUS’ immunity ruling — that a candidate for re-election is not entitled to presidential immunity. So, the filing argues, any discussions that Trump and Pence had about their re-election bid (the filing lists nine here) are not official.
[T]he Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.
[snip]
Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration°°’—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities.
Another thing prosecutors did is engage in a system of parallel citation, often citing what must be interview or grand jury transcripts along with passages from Pence’s book.
The brief doesn’t ever mention footnote 3, in which Chief Justice John Roberts, in an attempt to dismiss Justice Barrett’s concerns that excluding officially immune evidence would make it impossible to prosecute the bribery specifically mentioned in the Constitution, said that of course prosecutors could rely on “the public record.” (See Anna Bowers’ good piece on the footnote here.)
3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)
For much of the Pence testimony on which prosecutors want to rely, that parallel system of citation makes clear, there is a public record, and was — even excerpted in the WSJ — months before prosecutors interviewed Pence. Again, prosecutors aren’t making the argument that that should change the calculus. But ultimately, this is an instance where one key victim of Trump’s alleged crimes went public even before prosecutors asked for his testimony.
I actually think where Jack Smith’s bid may fail is with three others: Eric Herschmann (Person 9), Dan Scavino (Person 45), and Stephen Miller (who — best as I can tell — is not mentioned).
Eric Herschmann
If possible, Smith’s prosecutors rely even more heavily on Eric Herschmann’s testimony than the January 6 Committee did. The immunity brief uses his testimony to prove that Trump knew his claims of election fraud were false. It uses Herschmann’s prediction that Trump would never have to pay Rudy for his election interference because Rudy would never be able to prove his claims. It relies on Herschmann’s testimony (and that of another White House staffer) to describe how Trump mocked Sidney Powell even while relying on her false claims. It relies on Herschmann’s testimony about Trump possibly signing a false declaration in a Georgia lawsuit. And it relies on Herschmann to introduce the evidence presented by paid vendors that there was no evidence of substantive election fraud.
The filing includes two long sections (one, two) explaining why Herschmann’s testimony shouldn’t be considered official actions. Herschmann’s relationship with Trump was familial, arising from his childhood friendship with Jared. His portfolio at the White House was undefined. Prosecutors get around the possibility that Herschmann’s testimony might be official by describing his role as a “conduit for information from the Campaign,” providing “near-daily” updates on the campaign. If this argument fails, then a great deal of prosecutors’ best evidence would disappear.
Dan Scavino
Dan Scavino’s testimony is just as critical. Prosecutors want to use Scavino to introduce Trump’s Twitter addiction and to validate that some Tweets — including the one targeting Pence — were sent by Trump.
P45 served as Assistant to the President and White House Deputy Chief of Staff.694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos.695 The Government will elicit from P45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to P45 having do it. None of this proposed testimony on P45’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45’s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.
They also want to use Scavino, along with Herschmann and Nick Luna, to testify that Trump was sitting alone in his dining room obsessing about Fox News coverage on January 6.
The filing treats actions by the White House Deputy Chief of Staff as unofficial, in part, by noting that Scavino “volunteered” for the campaign while working as Deputy Chief of Staff and that “he did not differentiate between his official and his Campaign duties and when he would send Tweets on the account for Campaign purposes.” Like Herschmann, Scavino got White House Counsel advice about how to play both a White House and a campaign role. The filing tries to finagle this by distinguishing between Trump’s @POTUS and his @RealDonaldTrump Twitter accounts.
But ultimately, Scavino would be one of the most hostile witnesses at trial, or in any kind of evidentiary hearing (along with Jason Miller). Prosecutors are resting a whole bunch on what even they admit is a vague border between campaign and official Tweeting.
Stephen Miller
Then there’s Stephen Miller, Trump’s Discount Goebbels.
As far as I know, Miller is not mentioned in this brief at all.
That poses a bit of a potential weak point in prosecutors’ effort to rely on Trump’s January 6 speech treated as a campaign speech (which they otherwise do by matching it to a clear campaign speech given in Georgia two days earlier, focusing on who paid for the rally, noting that Secret Service did not consider it an official event, and observing that Trump walked in and out to Lee Greenwood and YMCA rather than Hail to the Chief).
That’s because — as the January 6 Committee Report describes — Miller was intimately involved in adding attacks on Pence back into the speech after the Vice President refused Trump’s demands a final time.
Instead, between 9:52 a.m. and 10:18 a.m., the President spoke with hisspeechwriter, Stephen Miller, about the words he would deliver at the SaveAmerica Rally just hours later.30 The former President’s speech had come together over the course of 36 hours, going from a screed aimed at encouraging congressional objections to one that would ultimately incite mob violence.31
Only four minutes after the call concluded, at 10:22 a.m., Miller emailedrevisions to the speechwriters, instructing them to “[s]tart inputting thesechanges asap” that included “red highlights marking POTUS edits.”32 ThePresident had made some cosmetic additions, like peppering in the word“corrupt” throughout,33 but there was one substantive edit—a new target—that would focus the crowd’s anger on one man.
None of the preceding drafts mentioned Vice President Pence whatsoever. But now, at the very last minute, President Trump slipped in the following sentences calling the Vice President out by name:
Today, we will see whether Republicans stand strong for the integrity of our elections. And we will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally-submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify. With only 3 of the 7 states in question we win and become President and have the power of the veto.34
[snip]
As recounted in Chapter 5, President Trump called Vice President Penceat 11:17 a.m.39 The call between the two men—during which the President soon grew “frustrat[ed] or heated,”40 visibly upset,41 and “angry”42—lasted nearly 20 minutes.43 And President Trump insulted Vice President Pence when he refused to obstruct or delay the joint session.
After that call, General Keith Kellogg said that the people in the roomimmediately went back to editing the Ellipse speech.44 At 11:30 a.m., Miller emailed his assistant, Robert Gabriel, with no text in the body but the subject line: “insert—stand by for phone call.”45 At 11:33 a.m., Gabriel emailed the speechwriting team: “REINSERT THE MIKE PENCE LINES. Confirmreceipt.”46 One minute later, speechwriter Ross Worthington confirmed that he had reached Vincent Haley by phone.47 Haley corroborated that he added one “tough sentence about the Vice President” while he was at the teleprompter.48
The final written draft had the following Pence reference: “And we will see whether Mike Pence enters history as a truly great and courageous leader.”49 Haley wasn’t confident that line was what he reinserted, but email traffic and teleprompter drafts produced by the National Archives andRecords Administration (NARA) indicate that he was mistaken.50
At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session.410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed.411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification.412
Admittedly, in the section that specifically argues for the speech’s treatment as a campaign speech, the filing describes that most staffers were using their personal emails to edit the speech (the brief uses this distinction elsewhere, including to admit communications from Mark Meadows). But not the final revisions.
Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email.585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586
This may not doom prosecutors’ efforts to admit the speech. There are so many other reasons why it is clearly a campaign speech (though of course, SCOTUS has not adopted Blassingame, so they may not even find that dispositive).
But Stephen Miller is right there in the middle of the speech revisions, ready to claim he did so as an official White House employee.
Mind you, if Trump tried to make that argument, prosecutors might revert to the same thing they did to rely on the Tweet Peter Navarro sent, lying about vote fraud, which Trump then used to pitch January 6. Navarro was a Hatch Act recidivist — Trump’s entire White House was — so you can’t use the fact that Navarro had a White House job to rule that his Tweet was an official act.
In tum, that Tweet linked to a document drafted by P69. P69 that had nothing to do with P69’s official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election.633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.
Now’s a good time to reveal that Navarro got a second extension on his deadline to file for cert at SCOTUS, partly because Magistrate Michael Harvey has not yet finished reviewing the emails he sent via ProtonMail for Presidential Records is not yet done. Or, to put it differently, Jack Smith likely still doesn’t have all the emails via which Navarro participated in this coup attempt.
If SCOTUS had any shame, this nitty gritty — the notion that Trump’s mean Tweets against fellow Republicans might be protected under a claim of presidential immunity — would soon become embarrassing.
But then I remember that the three Justices who would be most amenable to such an argument might well grow defensive after being reminded that they were present at the start of all this, the effort to shut down vote counts via lawfare accompanied by the threat of violence.
Update: Note that the December 14 podcast cited in the immunity brief laid out in this post was an interview about the fake elector plot with Stephen Miller. It’s another area where Miller is in the thick of things.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-04-at-12.56.38 PM.png3861324emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-04 10:37:562024-10-05 09:36:28How Jack Smith Wants to Prove Trump’s Crimes
I want to take a step back and put the immunity briefing released yesterday in context.
On July 1, after SCOTUS released its immunity opinion on the last possible day, it remanded the case back to Judge Tanya Chutkan to assess what was immune under the newly rewritten Constitution.
As soon as she got the case back, Judge Chutkan ordered a status report for August 9 and a status hearing for August 16. But then on August 8, Jack Smith said, sorry, can we have more time? I correctly predicted then that Smith was superseding the indictment, which Smith did do on August 27 (for reasons I won’t yet explain, this filing makes me think we may see more charges after the election).
In a September 5 status hearing, prosecutors successfully persuaded Judge Chutkan to let them deal with the remand by first submitting a brief explaining how the new indictment complies with SCOTUS’ rewritten Constitution. During the hearing, Chutkan reiterated something she has said from the start: she’s not going to let the election stall this prosecution.
I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here.
This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.
Trump’s team ignored that warning, wailing about the election in a filing that was supposed to be about discovery. They wailed again in response to Jack Smith’s request to file a 180-page brief. In her order granting Smith’s request, Chutkan again swatted back at Trump’s election wails.
In response, defense counsel reframed the problem as an “election dispute,” insisting that “it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history.” Id. at 28–29. But Defendant’s concern with the political consequences of these proceedings does not bear on the pretrial schedule; “what needs to happen before or shouldn’t happen before the election is not relevant here.” Id. at 29.
When the prosecutors asked to file its brief in redacted form (which they had warned it would do, and which they noted complied with the protective order in the case), Judge Chutkan gave Trump a deadline of noon on Tuesday — a clear sign she didn’t want to dawdle over redaction fights. Nevertheless, in their reply, Trump’s lawyers accused Smith of “improper political considerations” again, rather than disputing any particular redaction. By choosing to offer no more than generalized complaints for more redactions (redactions that might have hidden, just as one example, how many times current Trump campaign advisor Jason Miller told Trump he had lost, lost, lost the election in 2020), Trump’s team sunk their chance to delay the redactions. I thought it might be quick, but didn’t expect it to come as soon as last night.
In her opinion ordering the motion to be unsealed, Judge Chutkan expressed increasing impatience with Trump’s claims of politicization. Trump already got his shot at a vindictive prosecution claim, Chutkan noted, which she rejected as soon as she got the case back in August.
In addition to the assertions discussed above, Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias. See Def.’s Opp’n at 2, 5–6. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. See Oversized Brief Order at 2–3 (identifying two recent instances of this pattern). Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. Defendant has had an opportunity to make his case that his prosecution is improperly motivated. See Def.’s Mot. to Dismiss for Selective and Vindictive Prosecution, ECF No. 116. Future filings should be directed to the issues before the court.
Best as I can tell, Chutkan issued her order around 3:30PM ET yesterday, and the Smith filing posted around 3:35PM.
At 8PM — so well after they should have read Chutkan’s order — Trump’s team requested permission to file for excess pages as well, the same 180-pages that Smith got. They also asked to get a sur-reply, the kind of request that you normally make after someone raises a new issue in a reply, albeit one she effectively invited at the status hearing last month.
But they also asked for an extension for their response until after the election, until November 21. Not only do they offer almost no excuse for the delay, aside from existing deadlines, one of which is for today and the other of which is for an attack on the Special Counsel appointment that conflicts with DC Circuit precedents. But they misrepresent the timing that has already occurred, suggesting that the time DOJ took to consult with others at DOJ and supersede the indictment was rather time they took to write the immunity brief.
[T]he Court granted the Special Counsel’s request for an additional three weeks to complete its drafting, setting a September 26, 2024, deadline.
[snip]
This resembles the 3-week extension the Court previously provided the Special Counsel, Aug. 9, 2024, Minute Order, which allowed the Special Counsel to work on its initial brief before the September status conference. In total, the requested extension would provide President Trump 8 weeks to file his Response, which approximates the 6 weeks the Court granted the Special Counsel (including a 3-week extension before the status conference, and an additional 3 weeks thereafter to finalize its brief and exhibits).
Trump’s lawyers offer no justification for the extension, at all, that arises from their own time constraints (for example, the Jewish high holy days, which have a habit of messing with many a criminal docket, or their other caseload). They simply want more time because, they falsely claim, Jack Smith got more time.
Jack Smith wrote a 180-page filing in three weeks.
And Judge Chutkan already knows that Trump’s team can work quickly. At the status hearing on September 5, when John Lauro similarly tried to stall, Thomas Windom pointed out that in July, Trump’s attorneys wrote a 52-page attack on the New York State hush payment case in nine days.
I want to point out just as a data point for your Honor, on July 10th of this year, the Defendant, in his New York State criminal case, the Defendant and two of the attorneys sitting at this table filed a 52-page motion to vacate his state criminal conviction on the grounds of a Supreme Court opinion that came out nine days before. Fifty-two pages covering an entire trial record in nine days.
The defense can move comprehensively, quickly and well. So can we. And the Court should consider that in setting its schedule. The final piece, your Honor —
THE COURT: Congratulations, Mr. Blanche.
That’s in the court record now: At a pace of 52 pages in nine days, Trump’s team should be able to file their 180 pages in a month.
But a month is longer than their current deadline, which is three weeks. So I wouldn’t be surprised if Chutkan did give them some relief. Even if she gives them one week, it’d bump right up against election day, which is transparently the point.
It is likely that Trump will not have to explain himself until after voters have already weighed in.
Back on August 31, I noted that Trump really didn’t want to have to justify almost getting Mike Pence killed on January 6.
In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”
This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.
That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.
[snip]
There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.
Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.
But there must be more than that. After all, the allegation is out there, along with the new revelation that after Trump sent the tweet targeting Pence at 2:24PM, someone (probably Nick Luna) rushed into Trump’s dining room and told him Pence had been moved to a secure location. “So what?” Trump said as his Vice President was hearing chants of “hang Mike Pence” from Trump’s rioters.
Trump wants to boot this past not just the election, but also the aftermath.
Perhaps Trump just wants to leave open the possibility of never responding. If he wins, Judge Chutkan would have very few tools to enforce her deadlines, even in the two months before Trump was inaugurated.
Or perhaps Trump doesn’t want to address a coup strategy that he plans to reuse?
Update: I mean, how familiar does all this feel, citing how Trump laid the groundwork for his coup attempt?
In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5
On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6
In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7
At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9
On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.
Update: As I suspected she might, Judge Chutkan gave Trump more time — just enough to get beyond the election. But not all the time he requested.
MINUTE ORDER as to DONALD J. TRUMP: Defendant’s [253] “Motion to Extend Page Limits and Time to Respond to Government’s Motion for Immunity Determinations and for Leave to File a Sur-Reply” is hereby GRANTED in part and DENIED in part. The court’s [233] Order is MODIFIED as follows: Defendant’s combined Response and Renewed Motion to Dismiss Based on Presidential Immunity is due November 7, 2024 and may include up to 180 pages; the Government’s combined Reply and Opposition is due November 21, 2024; and Defendant may file a combined Reply and Sur-Reply by December 5, 2024. Signed by Judge Tanya S. Chutkan on 10/3/2024. (zcll)
https://www.emptywheel.net/wp-content/uploads/2023/04/Screenshot-2023-04-28-at-09.24.08.png11882124emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-03 10:41:122024-10-03 17:29:38The Immunity Brief: How We Got Here, Where We’re Going
