Is here. I’ll write it up once I’ve read it.
Here’s the November 14, 2020 tweet IDing the following people.
CC1: Rudy
P10: Joe DiGenova
P11: Victoria Toensing
CC3: Sidney Powell
P12: Jenna Ellis
I’m about to go to bed. But the filing suggests that Trump was laughing with someone at Fox — possibly Tucker Carlson — about Sidney Powell.
That will make this evidence more comfortable for SCOTUS to reject.
There have been a flurry of filings in Donald Trump’s January 6 case today.
They are:
In general, Smith claims that Trump already has a lot of what he asked for. For example, because Smith adopted an expansive view on discovery from the start, Trump already has details about the payments for his January 6 rally and speech, which are newly relevant in the immunity context.
Trump asked for the texts of two people, claiming he only had four and ten texts from each. Smith says they already got far more (and can also look up texts in the warrant returns for others).
But I’m interested in this big redacted bit discussing … something about those text messages.
Finally, remember how several of Trump’s people (including Mark Meadows and Peter Navarro) used private email to plan their insurrection?
That’s going to be part of the immunity case.
With the exception of a handful of publicly available sources, the Government long ago produced this material to the defendant in discovery, even though much of it was arguably not discoverable. This includes material that goes to context and that the defendant incorrectly claims he does not already have— such as proof of the funding and organization of the Ellipse rally at which the defendant spoke on January 6; evidence about the defendant’s actions surrounding meetings and communications that the Government contends are unofficial; and other information indicating private, rather than official conduct, like Hatch Act warnings and use of private email accounts. The defendant’s assertion that he does not have such material appears based on the faulty assumption that the Government did not already produce it, as it did. See ECF No. 232 at 60 (counsel “assuming” there is discovery that has not been turned over “because the Government never had to really look at issues relating to immunity before”).
It would be hilarious if Trump’s failures to abide by the Presidential Records Act ends up biting him in the ass.
For now, because Trump didn’t engage with the redactions in the way Judge Tanya Chutkan ordered him to, it looks more likely we’ll get to see Smith’s substantive brief sooner rather than later.
In his response, Trump claimed there’s not much new there.
While the Presidential immunity filing contains few, if any, new allegations not already covered in other politically motivated and inaccurate lawfare efforts that President Trump’s opponents have improperly funded and disseminated, it is irresponsible for the prosecutors to so quickly abandon the safety and privacy interests that they previously assigned great weight in this case and in the Southern District of Florida. Accordingly, the Court should require the Office to make consistent redactions regarding identity-related information and to show cause why their proposed public disclosure of voluminous purportedly sensitive witness statements will not pose risks to potential witnesses and unfairly prejudice the adjudication of this case.
But he’s nevertheless trying to better hide the identities of the witnesses against him.
I continue to track the asymmetric pace of the campaigns of Donald Trump and Kamala Harris. Today is another milestone for the Vice President.
As of today, Donald Trump has <5% of his campaign left (36 days of 721).
As of today, Kamala Harris has a third of her campaign left (36 days of 107).
Back on August 17, I laid out six things that could destabilize the race. We’ve gotten versions of four of those, though without yet serious impact on the race.
In my earlier post, I said we should be unsurprised by a Black Swan event (I suggested all-out war was one possibility, and given the escalation in the Middle East, it remains one).
The floods caused by Helene could be another. Right wingers are already trying to ensure this works like Katrina did for George W Bush. And whatever else, the flooding disproportionately affected the rural areas that Trump needs to win North Carolina (though North Carolina voters can forego voter ID requirements under an emergency exception). That said, the Helene response may also highlight two things — FEMA and NOAA — that Project 2025 aims to defund. Tennessee Governor Bill Lee’s attempt to forgo federal help may provide a contrast that shows how Federal help can make a difference in a catastrophe. And a whole bunch of conservative people just got bowled over by the impact of climate change, hundreds of miles from the nearest coast. If the Feds can respond to the damage on I-40 like they did to the I-95 or the Francis Scott Key Bridge disaster, it may convince people in North Carolina that the government can too do something good.
Against that background, small shifts continue that could have significant payback in days ahead. As noted, Kamala has significantly cut Trump’s lead in perception of who will best manage the economy, and that happens as more good economic news rolls in. That’s where the horserace journalists are looking instead of Trump’s apocalyptic rhetoric. That measure, at least, is moving in a positive direction.
Tomorrow marks two key events: a Vice Presidential debate that may prove more momentous than prior debates (and JD is much more resilient to goading than his boss is), and Jimmy Carter’s 100th birthday, one day closer to the day he can vote for Kamala Harris.
May Jimmy Carter live to see the first woman elected President.
Jack Smith initially filed his proposal on how to release his book report making the case that Trump is not immune from the January 6 charges against him under seal. After getting a first look at it (and the underlying filings), Judge Tanya Chutkan issued this order, unsealing it, and giving Trump very little time to respond to Smith’s proposed redactions in the motion itself, less than five days, with slightly less than two weeks to do redactions on the exhibits themselves.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Why do you give a deadline of mid-day for the initial objections? I would not be surprised to see Trump ask for more time.
I expect Trump to complain about at least one other thing (though let’s be honest; he’s going to complain about all of it).
Smith wants to include the quotes from sensitive material, but not the identity of the people quoted, in the immunity filing itself.
In the Motion’s text, the Government has not redacted quotations or summaries of information from Sensitive Materials, but in the footnotes has redacted citations that reveal the non-public sources of such information, including grand jury transcripts, interview reports, or material obtained through sealed search warrants. In the proposed redacted Appendix, the Government has redacted non-public Sensitive Materials in their entirety. And the Government also has proposed limited redactions to some publicly-available materials, such as the defendant’s Tweets, when such material identifies or targets an individual who—because of their status as a potential witness or involvement in underlying events—may be susceptible to threats or harassment, or may otherwise suffer a chilling effect on their trial testimony.
Trump may have even anticipated this proposal; Trump’s response to Smith’s request for an oversize brief twice raised concerns about confronting witnesses.
The proposed approach is fundamentally unfair, as the Office would attempt to set a closed record for addressing unfiled defense motions by crediting their own untested assessments of purported evidence, denying President Trump an opportunity to confront their witnesses,
[snip]
In this case, including through the Motion, the Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election.
In the hearing on this on September 5, John Lauro similarly emphasized the import of cross-examining witnesses — including immediately before he first raised the election.
They’ve had the ability to subpoena witnesses. They’ve had the ability to take people into the grand jury. They’ve had the ability to interview witnesses.
We’ve not had a full and fair opportunity to cross-examine. So they’re asking for an asymmetrical protocol, where they submit information which we don’t have the ability to cross-examine.
[snip]
These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them.
[snip]
MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —
THE COURT: Ah.
MR. LAURO: — which we can’t ignore, that they’re able to, you know, basically load up on what they think this case is about without our ability to meet those factual assertions with the right to cross-examine. The other issue that’s very problematic here, your Honor, which we’ve not addressed, most of this information is under seal. So if we’re going to go that route, then we’re going to have to have at least some determination among counsel as to what is unsealed and what is not unsealed. If we’re going to go that proffer route, we’re certainly going to put in the record a number of documents which we believe are incredibly exculpatory, which are now currently under seal.
We often forget, Trump’s lawyers have seen all this, in discovery. They’ve been panicked about certain aspects of this case for some time, including the degree to which prosecutors could tie Trump to the crime scene, stuff that would not be remotely official (especially — even if — it involved siccing a mob on his Vice President).
We’ve known for 18 months that groups of rioters focused on Mike Pence — including, according to at least a few cooperating witnesses, the group that has the most obvious ties to Trump, the Proud Boys.
Even John Roberts might balk at the argument that ties between Trump and the militia he riled up at the first debate are protected under the duties of the President.
And — I predict — John Lauro is going to make a Sixth Amendment case that Jack Smith can’t unseal these things.
Judge Chutkan has already made it clear she’s uninterested about Lauro’s arguments about “this sensitive time.” But Lauro has already laid the foundation to make a Sixth Amendment argument about how (and if) this evidence can be made public.
Listen on Spotify (transcripts available)
Listen on Apple (transcripts available)
At least thus far, I am wrong. Trump’s response to Jack Smith’s request for an oversized opening brief did not stage an emergency his lawyers can use to ask John Roberts for immediate help.
Oh sure. They wailed about fairness.
The proposed approach is fundamentally unfair, as the Office would attempt to set a closed record for addressing unfiled defense motions by crediting their own untested assessments of purported evidence, denying President Trump an opportunity to confront their witnesses, and preventing the defense from obtaining discovery.
They complained about the election — one thing that Judge Chutkan has made clear she doesn’t want to hear. They complained about the election over and over and over.
In doing so, though, they falsely claimed that Jack Smith was trying to release all this publicly.
[T]he Office is violating these protections and has instead articulated an unacceptable, extralegal “guiding principle” of “structur[ing] a schedule that leads to only one additional interlocutory appeal.” 9/5/24 Tr. 12-13. That is simply code for the Office’s continued preference for the type of “highly expedited” proceedings prior to the 2024 Presidential election that the Supreme Court has already criticized.
[snip]
[T]he Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election.
The strategy reflected by the Motion would increase the irreparable harm caused by the Gag Order in this case. False, public allegations by the Special Counsel’s Office, presented through a document that has no basis in the traditional criminal justice process, will undoubtedly enter the dialogue around the election. The Gag Order prevents President Trump from explaining in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties. While the D.C. Circuit modified and addressed the Gag Order previously, the court was careful to note that “the general election is almost a year away, and will long postdate the trial in this case.” United States v. Trump, 88 F.4th 990, 1018 (D.C. Cir. 2023). Circumstances have changed drastically: President Trump is the leading candidate in the Presidential election, which is just weeks away. The Office cannot be permitted to issue a massive and misleading public statement that is not responsive to a defense motion, and risks adverse impacts to the integrity of these proceedings, while simultaneously insisting on an unconstitutional prior restraint on President Trump’s ability to respond to their inaccurate assertions while he is campaigning.
The huge public filing that the Motion portends would also violate the Justice Manual, which prohibits “Actions that May Have an Impact on an Election.” Justice Manual § 9-85.500 (emphasis added). “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.” Id. Separately, prior to this case, DOJ followed an “Unwritten 60-Day Rule” summarized as follows6:
- Former FBI Director Jim Comey: “[W]e avoid taking any action in the run up to an election, if we can avoid it.” DOJ-OIG Report at 17.
- Former Attorney General Loretta Lynch: “[I]n general, the practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Id. at 18.
- Former Deputy Attorney General Sally Yates: “To me if it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” Id. at 18.
Departures from these practices should never be countenanced because they risk allowing prosecutors to impact national elections, but the situation is even worse here where the Special Counsel’s Office is seeking to do so by turning criminal procedure on its head in order to file a 180-page false hit piece. See Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (“The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.”). “[O]nce the election occurs, there can be no do-over and no redress” for the voters or President Trump. League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014).
6 A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, U.S. Dep’t of Justice Office of Inspector General (June 2018) (the “DOJ-OIG Report”) at 17-18, available at https://s3.documentcloud.org/documents/4515884/DOJ-OIG-2016-Election-Final-Report.pdf. [emphasis mine]
But the most curious complaint is that Trump’s team says he’ll be harmed even with these filings submitted under seal.
For example, in support of the Office’s motion for a protective order, they argued that President Trump has “no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.” ECF No. 15 at 4. Now it is the Office that wishes to press their case to drive public opinion rather than justice.
None of this will impress Judge Chutkan. She has repeatedly told them she doesn’t want to hear about the election.
But they have previewed the argument they make when Jack Smith — or the press consortium — asks to unseal this.
Update: Judge Chutkan has ruled to permit Jack Smith his 180 pages. She addresses Trump’s concerns regarding publicity by pointing to the protective order.
Fourth, Defendant contends that the briefing schedule would be unfair given the court’s order restricting certain extrajudicial statements, ECF No. 105, and the Government’s position with respect to the protective order in this case, see Reply in Supp. of Mot. for Protective Order, ECF No. 15. But the former contention mischaracterizes the court’s order, and even so identifies potential political consequences rather than legal prejudice. Def.’s Opp’n at 7.1 And the court did not accept the Government position that Defendant decries—“that even materials marked ‘nonsensitive’ under the Protective Order” should be kept under seal, id. at 5—instead extending that protection only to sensitive materials, see Protective Order ¶¶ 2–12, ECF No. 28. The court likewise rejects Defendant’s unsupported assertion that publicly docketing nonsensitive materials during the immunity briefing would impermissibly “impact potential witnesses and taint the jury pool.” Def.’s Opp’n at 5. Moreover, and once again, Defendant offers no reason why the same predicted harms would not result from his own proposal, which would include immunity briefing with presumably the same materials. See Joint Status Report at 4.
1 Defendant claims that he cannot “explain[] in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties,” which could affect his political candidacy. Def.’s Opp’n at 7. As relevant here, the order only prohibits Defendant from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” United States v. Trump, 88 F.4th 990, 996 (D.C. Cir. 2023).
That language will lead to the nonsensitive material being unsealed sooner rather than later.
She mentions Trump’s wails about the election just once, noting that none of this causes him legal prejudice.
Fifth and finally, Defendant claims that the Government’s forthcoming brief violates Department of Justice policy. He asserts that the brief “would be tantamount to a premature and improper Special Counsel report,” Def.’s Opp’n at 6, which is provided at “the conclusion of the Special Counsel’s work,” id. (quoting 28 C.F.R. § 600.8(c)). And he argues that the brief would run afoul of the Justice Manual, which prohibits federal prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” Id. at 7 (quotation omitted). The court need not address the substance of those claims. Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy.
I expect, on top of everything else this week, Trump’s lawyers are going to claim an emergency to try to ban Jack Smith’s book report, currently due Thursday.
As you’ll recall, after Judge Tanya Chutkan finally got the Trump January 6 case back, she agreed with Jack Smith’s proposed path forward: They would submit a brief explaining how the superseding indictment complies with the Supreme Court’s immunity opinion. Chutkan set a deadline of September 26, Thursday, for that brief.
Trump seems certain that if voters see that brief, he will lose the election.
Last Thursday, Trump’s lawyers submitted what was supposed to be a discovery filing, in which they basically said, “NOOOOOOO!!!!! No briefing before the election.”
Dismissal is required to protect the integrity of the Presidency and the upcoming election, as well as the Constitutional rights of President Trump and the American people.
Judge Chutkan does not have to rule on those issues before determining the immunity question, though, so the filing was better read as, “Help me Sammy Alito!!!! Help me John Roberts!!!! You’re my only hope!!!”
Yesterday, Jack Smith submitted a request to file excess pages, 180 pages instead of 45. In it, he disclosed that Trump objected and wanted a chance to respond, with the deadline set for Tuesday, September 24.
Defense counsel opposes the Government’s motion at this time, and requests that the Court set a deadline of September 24, 2024, 5:00 PM ET for the defense’s response.
Judge Chutkan ordered Trump’s team to file their opposition one day earlier, Monday September 23 (note: Trump’s team filed their last filing after 5PM, after which Judge Chutkan made it clear she’ll permit no more of that).
Defendant shall file any opposition to the Government’s [237] Motion for Leave to File Oversized Motion by September 23, 2024 at 5:00 PM ET.
Trump will oppose not just the excess pages, 180 instead of 45, but the entire filing. Now he’s got one less day to make that argument.
Which is what you need to understand the other things in the Jack Smith request. Trump is going to stage an emergency to get this question elevated to SCOTUS to prevent the filing this week. He will try to take things SCOTUS ordered Chutkan to do out of her hands, to put them back before SCOTUS.
Anticipating that, Smith starts his request by laying out that he is just trying to do what Chutkan ordered, to show that SCOTUS ordered precisely this briefing.
In Trump v. United States, 144 S. Ct. 2312, 2340 (2024), the Supreme Court emphasized the “necessarily factbound” nature of any presidential immunity analysis. See id. at 2339 (“Determining whose characterization may be correct, and with respect to which conduct, requires a close analysis of the indictment’s extensive and interrelated allegations.”); id. at 2340 (“The analysis therefore must be fact specific and may prove to be challenging.”); id. (“Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.”). The Supreme Court remanded to this Court “to determine in the first instance—with the benefit of briefing we lack—whether [the defendant’s] conduct in this area qualifies as official or unofficial.” Id. at 2339.
A few paragraphs later, he describes that because this review will be what SCOTUS reviews on appeal, the record must be comprehensive. Thus the need for 180 pages.
The Court has been directed to conduct a detailed, factbound, and thorough analysis of the Government’s case to make appropriate immunity determinations. Because the Court will make determinations “in the first instance” that will be subject to exacting appellate review, it is essential that the Court ensure that the record in support of its determinations is complete. The Government believes that a comprehensive brief by the Government will be of great assistance to the Court in creating that robust record, and the Government thus seeks leave to exceed the typical limit for a single motion. See Local Crim. R. 47(e) (limiting opening motions and oppositions to 45 pages and replies to 25 pages).
Smith goes into detail about the breakdown of those 180 pages: half is narrative, thirty pages are footnotes, a bunch are exhibits. Those details will only matter if we ever get to see it.
Remember: Trump is looking for some basis to cause an emergency that will allow him to get back to SCOTUS. So Jack Smith will (and probably would have, in any case) submit the filing under seal, and only afterwards work on unsealing it for the voting public.
For the Court’s awareness, the opening brief and its exhibits contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction. See ECF No. 28 ¶¶ 11-12. Because of the extensive and time-consuming logistics involved in finalizing the brief, appendix, and proposed redacted public versions of the same, the Government respectfully requests the Court’s decision on this motion as soon as practicable.
Voila, no emergency.
But without creating such an emergency, then Chutkan will get a look at the argument.
I honestly have no idea how it’ll end up. I’ve been wracking my brain for what procedural reason Trump’s team could use to declare an emergency.
But with this SCOTUS, it doesn’t have to be all that plausible.
As I laid out last week, Trump’s lawyers want to make the entire immunity discussion about his January 6 indictment about Mike Pence; they had wanted to do so after the election. They argued in their status report that Jack Smith will be unable to rebut the presumption invented by John Roberts that discussions with Mike Pence are immune from prosecution.
[I]n Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).
The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”). [emphasis original]
As it became clear at last Thursday’s hearing that Judge Tanya Chutkan wasn’t going to let Trump delay until after the election, Trump’s attorney, John Lauro, made a number of desperate bids to — first — limit the entire immunity discussion to Mike Pence, and then limit that discussion to legal issues, not evidentiary ones. This seems to be an effort to prevent actual facts, including previously undisclosed ones, from being disclosed before the election.
Here’s how Lauro described it. All sides agree that the immunity decision treated conversations between the President and the Vice President as presumptively immune (though Judge Chutkan stumbled on this once). Lauro asserted that the standard the Supreme Court set on whether prosecutors could rebut this presumptive immunity was whether using conversations between the President and his Vice President would intrude on important presidential functions. If it would, those conversations would have to be immunized and, because the grand jury was exposed to them in the process of superseding the indictment, the entire indictment would have to be thrown out.
MR. LAURO: That’s what I’ve said, that that’s an official act.
So as a matter of — as an initial matter, the issue before the Court is whether or not the Government can overcome the presumption, whether or not they can show that there’s no way, no possible way, that the lack of immunity would result in an intrusion on an important presidential function.
They can’t show that. And if, in fact, the communications with Vice President Pence, which are all over this indictment, if, in fact, those are immune, then that entire indictment is improper and illegitimate. And that’s a gateway issue that your Honor needs to decide right away.
That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.
A bit later in the hearing, Lauro argued that Judge Chutkan could first rule on the legal issues — the ones the Supreme Court already did rule on — and only then turn to the evidence.
MR. LAURO: [T]he issues here, your Honor, at least initially, can be decided on a legal basis. Obviously, there’s some room for your Honor’s determination as to the timing. But the structure, the sequencing, makes perfect sense in terms of the way we proposed it.
That’s when he raised the election.
MR. LAURO: These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them. That would be an inherently unfair and inequitable process.
THE COURT: It’s not unfair in the sense that you don’t get an opportunity to address the issues. You’re just doing it in a different sequence. There’s nothing inherently violative of due process by the Government filing an open brief and your getting an advance look at their arguments, have a chance to respond and address them. The Government replies. And if you want to file a sur-reply, you can ask for leave to file a sur-reply. But there’s nothing inherently unfair in that. It’s just a matter of who goes first.
MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —
THE COURT: Ah.
Judge Chutkan dismissed the notion that any of this should be delayed in light of the election because it — Trump’s past action — is not a dispute about this election.
THE COURT: Let’s just — let’s just discuss what the sensitive time is. 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.
MR. LAURO: I’m not asking you to consider it. But the courts have routinely said that courts should not be drawn into election disputes. And there is an inherent unfairness in the legal process —
THE COURT: Oh, I am definitely not getting drawn into an election dispute.
MR. LAURO: Right. And what I’m saying is that this process is inherently unfair, particularly during this sensitive time that we’re in.
Then, after Lauro raised issues of discovery and grand jury testimony, he doubled and tripled down on his bid to keep this evidence out of the public view before the election, leading to this crescendo, before Judge Chutkan cut him off.
But for them to selectively decide how they want to portray their case before we move to dismiss is completely contrary to the Rules of Criminal Procedure. It shows fundamental unfairness never before seen in a district court.
And it’s exactly the kind of proceeding that the Supreme Court said should never take place, and it’s the reason that the Supreme Court, I believe, in part ruled as it did, that these issues are very important. They need to be developed with some legal care in a very transparent and careful way.
This is not behind-the-envelope — or back-of-the-envelope jurisprudence. This has to be done in a very, very deliberative way.
What we’re suggesting is your Honor deal with the legal issues first in accordance with the Supreme Court ruling and then turn to the merits of the evidentiary issues that need to be developed. That way, it’s structured. If your Honor decides — and your Honor may very well decide — that the information relating to Vice President Pence is not only presumptively immune, but immune, then that indictment has to be dismissed.
Why do we go through merits arguments on presidential immunity when as an initial matter the Court can dismiss this case right away? And that’s exactly what the Supreme Court said you should look at. Let’s deal with the gateway issues first. And that’s the way the Court structured the opinion.
THE COURT: Well, when the Supreme Court considered this case, Mr. Lauro, they had the original indictment in front of them, which set forth all the communications with the former vice president that are — that you’re talking about.
They could have ruled then that the indictment was so permeated with those kinds of contacts that it should be — that it couldn’t hold up. They didn’t. They sent it back to me to make certain findings, not just with regard to those communications, but with regard to all the allegations in the indictment.
So I’m not sure that I agree with you that as a matter of law I could just dismiss the indictment based on the Supreme Court’s — dismiss the superseding indictment based on the Supreme Court’s decision at all.
MR. LAURO: Of course you can. Because the Supreme Court — and the ruling is clear, crystal clear — has already decided that the communications with Vice President Pence are official acts within the outer perimeter of the presidential responsibility. That is the case law of this case right now.
The only issue with respect to Vice President Pence is whether or not they can overcome the presumption of immunity, which is an incredibly high bar. They have to show that under no circumstances, under no circumstances is there any intrusion with respect to the authority and responsibility of the presidency in light of those communications.
That’s an incredibly high bar. Your Honor can decide that as a legal issue guided by counsel. We can make whatever proffers are necessary.
If your Honor decides that that is immune, then the whole indictment craters. It goes away. Because the Supreme Court decision made very clear you can’t use immunized testimony with respect to an indictment or otherwise at trial.
So this is a logical way for the Court to deal with these issues. What they’re suggesting — and I don’t think your Honor is suggesting it, but asking questions about it — is that we leapfrog over the legal issues. We get —
THE COURT: That’s not what I’m suggesting.
MR. LAURO: No. I’m not suggesting you’re suggesting it. I’m suggesting that’s what they’re suggesting.
THE COURT: I actually don’t think that’s what they’re suggesting.
MR. LAURO: Well, they are in this respect: They’re suggesting they leapfrog into merits-based argument over all the official acts. Right? They’re going to do their big proffer.
All of that is wasted time if your Honor decides initially that the Pence communications are immune and they didn’t overcome the presumption.
We can avoid months and months of briefing by your Honor dealing with the gateway issue first. That’s exactly what the Supreme Court said you should be doing.
THE COURT: All right. I think I’ve — you’ve made your argument on that point.
There’s nothing legal available to Judge Chutkan that wasn’t already available to the Justices. There’s no conceivable way SCOTUS could have imagined Chutkan could carry out this inquiry without looking at the facts. And Lauro is misrepresenting SCOTUS’ concern with a jury seeing such immunized communications and a judge seeing them — after all, judges routinely weigh in on whether things like Speech and Debate communications are immunized, most recently in Scott Perry’s challenge to a warrant for his phone.
Now, Lauro may not be wrong that when SCOTUS reviews this after the election, they’ll agree that the bar is as “incredibly high” as Lauro suggests. We all thought he was batshit when he said the President would have this kind of immunity the first time, but he ended up rightly predicting that the Republican members of SCOTUS were that corrupt.
Here’s what the immunity decision actually said.
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.
At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
But there are three underlying tensions here.
First, quite early on, in the first time Lauro presented this argument to Judge Chutkan, she described that she wouldn’t be doing what SCOTUS told her to do if she didn’t conduct a fact-based analysis. She noted, as she would later, that the Supreme Court had everything Lauro claimed she could rely on — the indictment — but they didn’t make the legal decisions he said she could make without reviewing the evidence.
But when she made that argument the first time, she noted that she could be reversed (this would include the DC Circuit) if she didn’t conduct this fact-bound analysis.
Then Judge Chutkan, whose original opinion seemingly stated basic facts inherent to the Constitution was reversed by a decision that dramatically rewrote the Constitution, repeated, again, that she could be reversed no matter what.
MR. LAURO: That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.
THE COURT: I actually don’t think so, Mr. Lauro. The Supreme Court had the indictment before it. They decided — they ruled on these three categories. And certainly conversations with an existing vice president may be subject to the presumptive immunity that you talk about. But one of the things I have to decide is whether, based on facts presented to me by the Government, those conversations, those contacts, are somehow outside of his official duties.
MR. LAURO: I —
THE COURT: And I don’t think I can decide that as a matter of law. I think I would be — I would be risking reversal if I tried to decide that as a matter of law.
MR. LAURO: I would ask your Honor to reconsider —
THE COURT: I’m risking reversal no matter what I do.
Given the Calvinball the Supreme Court is playing with the Constitution, there’s literally no way she can avoid reversal by someone. So Lauro’s procedural complaint rings especially hollow. She’s likely to be reversed by somebody before this is over. I do agree she’s doing what SCOTUS told her, but even if she weren’t, all the normal incentives would be gone.
Plus, my guess is that Jack Smith will start from a different point, one Lauro never considered. The Supreme Court’s opinion assumed everything the President did was in the persona of the President. But the Blassingame decision that they pointedly did not address, at least, imagines that as candidate-for-President, nothing Trump did was an official act. When the President asks the Vice President to cast a tie-breaking vote to confirm a judge, he’s doing so as President. But when a candidate asks his running-mate to throw out 81 million votes, he’s doing so as a candidate, not a President.
And that’s something that Chutkan missed when she reminded Lauro, twice, that. “the original indictment in front of [SCOTUS …] set forth all the communications with the former vice president that are.” Not all the communications with Pence from the original indictment are in there. The superseding indictment took out several references Trump made, in conversations with Pence, to the Justice Department.
On December 29, as reflected in the Vice President’s contemporaneous notes, the Defendant falsely told the Vice President that the “Justice Dept [was] finding major infractions.”[snip]
76. During the meeting, as reflected in the Vice President’s contemporaneous notes, the
Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” andasked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?”
That’s important for two reasons. First, because it provides even further reason for Chutkan to conduct a fact-bound analysis.
But it also raises the question: What happens when Trump tries to reintroduce these references to DOJ? If he tries to use them to prove that Trump was speaking in his role as President, does that amount to a waiver of the immunity that Trump has worked so hard to get?
John Lauro worked hard to insist that everything involving Pence be excluded without closer review. But unless he invents a procedural reason to forestall DOJ’s memo on September 26, DOJ will get one (or two, with the reply) chances to lay out — before the election — how Trump tried to use his incumbency, and Mike Pence’s role as President of the Senate, to steal an election against from Joe Biden and the woman who currently is the President of the Senate.
As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.
Here’s how Thomas Windom described it in Thursday’s hearing:
MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.
THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?
MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.
But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.
We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.
We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.
THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?
MR. WINDOM: That’s right, your Honor.
Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.
THE COURT: How much of that information do you anticipate is going to be under seal?
MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.
But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.
We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.
Here’s the operative language from the Protective Order.
11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.
12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.
Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.
But Judge Chutkan would have the final say.
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