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Special counsel prosecutions in D.C. and Florida
Three developments from today that are important:
First, on Thursday, Judge Chutkan gave us some idea of what the schedule in D.C., where Trump is scheduled to go to trial in March, looks like. She has ordered the lawyers to confer in advance of January 9 and submit proposed jury questions to her by that date. She will resolve any conflicts (there are bound to be quite a few) between the parties about what questions should be asked, and on February 9, she will begin the process of selecting a jury.
Hundreds of District of Columbia residents will be summoned to the E. Barrett Prettyman Federal Courthouse on February 9 to fill out the jury questionnaire the judge finalizes. That leaves plenty of time to select a jury in advance of the March 4 start date for Trump’s trial. In D.C., Trump will stand trial alone, although the indictment includes mention of conduct by unnamed and unindicted co-conspirators. We still don’t know if any of them will be testifying as cooperating witnesses for the government, including those like Sidney Powell and Kenneth Chesebro who previously pled guilty in Fulton County, Georgia.
Second: late Thursday evening, Trump appealed the gag order—readers of Civil Discourse know that it’s actually a (very) limited restraining order—to the Court of Appeals for the District of Columbia. And, he asked that court to suspend the gag order for as long as the appeal takes, something Judge Chutkan had previously declined to do.
Trump is actually asking the court to take several steps. He wants the court to enter a stay, which would mean the gag order won’t be in place during the the appeal. That could be take a while since Trump indicates his intent to appeal to the Supreme Court if he loses in the court of appeals. He asks the court to rule on his request by November 10, just over a week away. Finally, while the court decides whether to enter that stay, Trump wants them to enter a brief administrative stay immediately, so that he can get out from under the gag order pronto.
Trump’s lawyers begin by writing about the outrageous nature of the gag order: “No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office—let alone the leading candidate for President of the United States. That centuries-long practice was broken on October 17, 2023, when the district court entered its Opinion and Order, A1 (the “Gag Order”), muzzling President Trump’s core political speech during an historic Presidential campaign.” The nerve, right? Breaking that centuries-long…but wait a minute. No other leading candidate has been under indictment during a presidential campaign, making demeaning comments about prosecutors and witnesses, knowing that some of his followers have violent tendencies. So, perhaps, in response to Trump’s lawyers, Jack Smith might just say there’s never been a need for such an order before in our nation’s history, because no former president nor candidate has been so criminal-minded.
Of course, Trump’s characterization of the gag order itself is off target. It is not of “an extraordinary nature,” as his lawyers write. It is not a “sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate.” Rather, it’s a modest restraining order. The Judge explicitly told Trump he was free to engage in political speech, that he could criticize the Justice Department or his political opponents based on political views, but could not target prosecutors, witnesses, and court personnel. So, there’s a large reality gap between what Trump claims the gag order does and what it in fact restricts him from doing. One look at Trump’s Truth Social feed or listen to his political rants is sufficient to confirm his political speech is unencumbered.
The motion tonight is not the substantive appeal of the gag order. The court will set a briefing schedule and the parties will have a full discussion of the legal issues that are at stake. Tonight’s motion is only about requesting the court of appeals to stay the gag order while those fuller proceedings take place. But to get the stay and prevent the gag order from affecting him while the appeal is underway, Trump’s lawyers have to show that he’s likely to win the appeal. So, we get a foretaste of what they will argue. They say that gag orders should be subject to the most exacting scrutiny and that it requires a “clear and present danger to the administration of justice” but that even if only a lower standard must be met to justify a gag order, this one can’t meet it.
That argument is important because the Supreme Court has yet to decide what standard courts should use to decide when to impose a gag order. The standard in D.C. is lower than some of the other circuits. Judge Chutkan sidestepped the issue by saying that even if the highest standard, the “most exacting scrutiny” test Trump wants the courts to apply is the correct one, it’s met here. After all, Trump said that the former chairman of the Joint Chiefs of Staff, General Mark Milley, a likely witness against Trump at trial, should be executed in a social media post. And his barrage of criticism of prosecutors and other witnesses has been almost nonstop. So, it would be fair for the court of appeals to decline to stay the gag order.
Trump has other arguments, primarily involving his assessment that the gag order is too vague to be enforced. Trump’s lawyers say it’s not clear what the instruction “directing President Trump not to say anything that presents ‘a significant and immediate risk to the integrity of these proceedings’” means. Although some pundits suggested Judge Chutkan could have tightened up her language when Trump made the same objection in the district court, she chose not to do so. Nor did she need to—this order is, if anything, overly fair in comparison to broad gag orders that are slapped on defendants who engage in conduct that could prejudice the proceedings or present a risk of harm to witnesses. Judges are entitled to, in fact obligated to, protect the proceedings in their courtrooms. Trump protests weakly that no witnesses were subjected to real threats, but something that concerns judges in a situation like this is how a defendant who is willing to threaten one witness might affect other witnesses. Not every witness in the case is a General or a former vice president. Some witnesses may be intimidated by Trump’s conduct towards others, and that could spill over into the jury pool as well. A defendant who cannot restrain himself can be restrained by the court.
While the court of appeals may well enter an administrative stay, just as Judge Chutkan did, to give it time to consider Trump’s request for a stay during the appeal, there is little reason to grant the longer stay. That’s especially true given the modest nature of the restraining order and the way Trump’s behavior—returning to criticizing witnesses as soon as Judge Chutkan temporarily released him from the gag order—proved its necessity. Although Trump claims his right to speak and the public’s right to hear from him are unfairly terminated by the gag order, he could have short circuited the entire process by avoiding the constant threats. He has earned a gag order in this case.
The real question is, how long it will take the appellate courts to sort this out? The clock is ticking, and Trump is increasingly transparent about his desperation to delay his criminal trials until after the election. While the appeal of the gag order shouldn’t slow things down, what’s coming behind it are the four motions to dismiss Trump has filed (presidential immunity plus three others, which we will take up next week), some of which he can appeal before trial if he loses. With the gag order, Trump has asked the court to decide a motion in a week. It’s certain that if he returns to the appellate court seeking rulings on some of those motions, he’ll be content to see the courts take up as much time as possible, and preferably until after election day in 2024, to render their decision and return the case for trial. Delay when it helps him, speed when it harms him. Certainly the courts can see through that?
That’s the question raised by tonight’s third development. In the Mar-a-Lago case, the Special Counsel’s office filed a pleading entitled “Notice of Defendant’s Motion To Stay Proceedings In The District Of Columbia.” Interesting that they felt they needed to give Judge Aileen Cannon in Florida insight into what Trump was doing in the D.C. case.
The pleading referenced a hearing Judge Cannon held the previous day. In that hearing, Trump’s lawyers argued that the May trial date for the Mar-a-Lago case was too soon. Part of their argument was that because of the March 4, 2024, date in D.C., if the Mar-a-Lago case went to trial as scheduled on May 20, 2024, Trump would be required to be in two places at once.
Leave aside for the moment the Special Counsel’s estimate the trial in the District of Columbia will take four to six weeks, which would give Trump and his lawyers at least a five-week grace period in between the two trials. Here’s what the Special Counsel’s office wanted to make sure Judge Cannon was aware of: Trump’s lawyers failed to disclose to her that shortly after her hearing concluded, Trump asked Judge Chutkan in D.C. to delay his trial there for as long as it took the courts to decide his motion to dismiss that indictment on presidential immunity grounds. (If you need a refresher on Trump’s presidential immunity motion, here.)
The timing of Trump’s motion to delay the D.C. trial meant it had been in the planning stages for at least several days—lawyers don’t produce legal briefs like that in the space of an hour without advance planning. Most lawyers, consistent with the obligation to be candid to the court, would have alerted Judge Cannon that they were about to file a motion to delay the D.C. case. That didn’t happen here.
That raised eyebrows in the Special Counsel’s office, so lead Mar-a-Lago prosecutor Jay Bratt filed the notice to ensure that the record in the Mar-a-Lago case includes what many judges would view as a disingenuous, if not deceitful, strategy by the Trump camp. Bratt took it straight to the Judge in no uncertain terms, urging her not “to be manipulated in this fashion.” We’ll see if Cannon, who has spent the lion’s share of her orders lately criticizing the Special Counsel’s office, has any criticism to spare for Trump’s lawyers. Read the Special Counsel’s pleading here.
It’s a lot to take in, especially when it all happens at once like it did tonight. I’d planned on finishing a deep dive into Trump’s motions to dismiss in the District of Columbia case, but we’ll hold off on that until early next week. Each of these developments—the trial schedule in D.C., the appeal of the gag order in that case, and the Special Counsel’s decision to push hard on Judge Cannon to avoid being sucker-punched by Trump’s lawyers’ maneuvering will be highly significant to the outcome of these trials.
The good news is that we are where we are, with criminal indictments pending and proceedings in progress. Even with the speed bumps, take a moment to think about the progress we’ve made, when for so long it felt like Trump would walk away from January 6 without facing any consequences.
We’re in this together,
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