"Jointly Where Possible"

We start with chickens, because these two are too sweet not to share, and also because Donald Trump’s transparent efforts to delay justice are so frustrating that we need something soothing before we get into tonight’s discussion.

Toot & Pickles (seated) surveying their domain

Friday night, Donald Trump’s lawyers and the Special Counsel’s Office filed their joint status report, noting, with lawyerly restraint, that they had conferred and were reporting to the court on their positions “jointly where possible.” In other words, they were largely unable to agree.

The lawyers were under court order to try and reach agreement, but the court advised them they could also lay out their separate views where agreement wasn’t possible. The report reflects very different perspectives on how the prosecution of Trump for election interference should progress.

Here is the extent of the issues they agree on:

• “The parties recognize the types of motions and briefing anticipated in pre-trial proceedings,” but they don’t agree on scheduling and how these matters should be conducted.

• “The parties believe the speedy trial deadline continues to be tolled because of at least one pending motion.” The Speedy Trial Act gives the government 70 days from the date of indictment to take a defendant to trial. If they violate the Act, the case is dismissed. But there are some exceptions to the Act, including one that excludes days where there is a motion pending in front of the court from the days that count towards the 70. That’s canon law and not up for debate, so it’s unsurprising that Trump and the Special Counsel agree that for as long as motions are pending in front of Judge Chutkan, the Speedy Trial Act clock isn’t ticking.

But that’s it, as far as agreement goes. The motion is ten pages in all. The parts the two sides agree upon take up two paragraphs, not even half of a page. The Special Counsel’s position takes up roughly two pages. Trump’s takes up roughly six and one-half pages. The bottom line is that Trump’s lawyers are devoted to preventing the public from learning anything about the Special Counsel’s evidence in the case before the election. It’s the same strategy we’ve seen Trump use repeatedly in litigation: delay, delay, delay.

This is the Trump side’s proposed schedule for the case.

Nothing of significance happens before the election. On October 25, Trump would file a version of the motion to dismiss that succeeded before Judge Aileen Cannon in Florida, asserting that Special Counsel Jack Smith’s appointment was unconstitutional. That’s a position that has already been rejected by the courts in the District of Columbia. But it gives Trump one last chance to trot out a rhetorical piece about the unfairness of it all as the bulk of American voters prepare to cast their votes.

The briefing on that motion to dismiss would take up the remainder of November on Trump’s timeline, with a hearing the first week in December. The Special Counsel would not begin to explain to the court (and the public) why the charges in the superseding indictment are not barred by immunity—which will require, either in briefs or in evidentiary hearings, a discussion of what Trump did and what evidence the government has to prove it—until January 3, when Trump would have the Special Counsel file his first brief on the issue. If the court accepts Trump’s view, there would be no proceedings in court until January 27, 2025, a week after the inauguration.

Trump anticipates filing a number of motions to dismiss the indictment, which his lawyers detail. One item they focus on is immunity, in the context of the Special Counsel’s allegations about the pressure campaign on Mike Pence. In the view of Trump’s lawyers, their client is immune from any prosecution regarding the pressure Trump put on Pence to refuse to certify Joe Biden’s election. In a rather remarkable section of the report, Trump’s lawyers don’t argue that their client didn’t pressure Pence to help Trump steal the election. Instead, Trump’s lawyers just say he’s immune from prosecution for doing it. That could even end up, at least to some extent, once the Supreme Court gets its hands on it, being a winning argument in a court of law. But in the court of public opinion, and particularly for voters, the argument that, “sure, I pressured Mike Pence to refuse to certify the election for Joe Biden after we lost so we could take over the government anyway” isn’t exactly a compelling one. And yet, that’s the essence of the position Trump’s lawyers take.

A major point of disagreement between the two sides is, who goes first. Jack Smith wants to file an opening brief on the immunity issue. He notes that while Trump is talking about lots of different motions to dismiss, the Supreme Court stressed that the immunity issue should go first, and Smith proposes the Court take that path.

Trump disagrees. He wants to go first, writing, “Finally, the Special Counsel asserts that it should file an opening evidentiary brief, but cites no authority or analogous rule in support of such a procedure. The Special Counsel has drafted and filed its Superseding Indictment as it saw fit. It is now President Trump’s right to challenge that indictment through appropriate motions and argument.”

It will be up to Judge Chutkan to decide how to proceed. There are no firm rules, and Judges have discretion about how to proceed in cases in front of them. She can accept the suggestion of one of the parties or craft her own roadmap. But here, Smith makes a compelling argument for beginning with a brief from the government explaining why the indictment survives the Supreme Court’s immunity rules. Most defendants would relish the prospect of having the government make its arguments before they must make their own so they would know what they were up against. It seems like for Trump, the whole goal is to keep as much of this information away from the public as possible for as long as possible.

Smith writes in his brief, “the Government proposes that it file an opening brief in which it will explain why the immunity set forth in Trump does not apply to the categories of allegations in the superseding indictment or additional unpled categories of evidence that the Government intends to introduce at trial and will proffer in its brief. The Government’s proposed brief would provide the defendant and the Court with detailed information regarding the ‘content, form, and context,’ … of the defendant’s conduct, distinguish his private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the Court may deem official. Such a brief would position the defendant, in his response, to oppose the Government’s positions and raise any other immunity claims based on the superseding indictment and additional evidence set forth in the Government’s pleading.”

Whether Smith gets to file his brief first or second, it’s going to be fascinating reading, and with a trial in this case a distant prospect—it’s likely there will be a second round of appeals on immunity before we get there—this will be Smith’s chance to make his case to the public. The Supreme Court was critical of Judge Chutkan for failing to create a factual record during her first look at the case and directed her to engage in a “factbound analysis” when it came back to her. She can’t do that without permitting the parties to submit detailed briefs, and perhaps taking evidence from witnesses in court. Smith did not ask for that specifically at this point, but it may end up being the best way to satisfy the Supreme Court’s concerns about the absence of a factual basis for the analysis of the immunity issue.

Judge Chutkan will hold a status conference this Thursday to work through these issues. We’ll know a lot more about what comes next after that. Whether she’ll have more patience with Trump’s transparent efforts to delay the case than the commentators who fumed after reading Trump’s portion of the status report remains to be seen.

Trump is afraid of this case. There is no other explanation for a schedule that is meticulously crafted to prevent the government from making any of its arguments until after the election. If Trump had confidence he wasn’t guilty, he’d be champing at the bit to get going. Instead, his lawyers are left arguing that, sure, their guy did it, but his buddies on the Supreme Court said he’s entitled to immunity, so the government can’t prosecute him.

You can find the ten-page submission in its entirety here.

Last year, I wrote a piece about Labor Day and the Triangle Shirtwaist Factory fire. I learned about the fire as a kid at a Jewish summer camp in Northern California, and because my immigrant great-grandparents were tailors, it has always stayed with me as one measure of the importance of unions. As much as I enjoy the friends, family, and BBQ aspects of Labor Day, it’s also an important commemoration we should take a moment to reflect on. If you missed my piece last year, you can read it here.

We’re in this together,

Joyce