Law & Politics

Thanks to those of you who joined Judd Legum, the author of Popular Information, and me last night for our live video chat. I’d love to hear from those of you who attended what you liked, didn’t like, and whether you think these live chats are something that might benefit us during and after the election.

We had another busy day at the intersection of law and politics yesterday. Here are a couple of important developments I want to flag for you.

Law:

In the D.C. case, Trump previously filed a motion asking Judge Chutkan to dismiss counts 2 and 3 of the indictment, which charge him with conspiracy to obstruct an official proceeding and interfering with an official proceeding—all referring to Congress’ certification of the Electoral College vote on January 6, 2021, under 18 U.S.C. § 1512. The statute makes it a crime to “corruptly ... otherwise obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so.” Today, Jack Smith filed his response.

Trump’s motion to dismiss is based on the Supreme Court’s decision last term in Fischer v. United States. In that case, the issue was whether January 6 rioters could be charged with obstructing Congress under the same provision Trump is charged with, 1512(c)(2) and also (k), the conspiracy provision.

In Fischer, the Supreme Court endorsed a narrow reading of § 1512(c)(2), limiting it to cases where “the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding, or attempted to do so.” While that argument may have worked against Mr. Fischer, whose conduct didn’t involve any document, Jack Smith argues that Trump is charged with conduct that involves documents, including the ones connected to the fake slate of electors scheme.

Of course, there is no precedent, no case remotely similar to Trump’s to substantiate the idea that the fake slates of electors qualify under the statute. So, Smith compares Trump’s case to United States v. Reich, where the defendant forged a court order and sent it to an opposing party in an effort to get them to dismiss an appellate proceeding. Smith argues that Trump and his (unindicted) co-conspirators “created fraudulent electoral certificates that they intended to introduce into the Congressional proceedings on January 6 to certify the results of the 2020 presidential election.” Smith argues that since the conduct in Reich was sufficient to prove a violation of the statute, Trump’s similar effort to use false documents to influence the outcome of an official proceeding are also appropriately charged here, despite the Court’s decision in Fischer.

Read Smith’s full reply here.

Judge Chutkan also issued her ruling today on Trump’s motion to compel the government to provide him with additional discovery and a related one to expand the scope of the prosecution team.

Trump wants the government to provide him with more information about how it built the case against him. He asked the Judge to require the prosecution to search nine government offices that hadn’t previously been considered a part of the prosecution’s team for 14 categories of information. The Judge rejected some of the requests but ruled for Trump in part, ordering the government to make a “reasonable search” for three categories of information:

• Materials the Director of National Intelligence reviewed before an interview with the Special Counsel’s team.

• Records concerning information about security measures that was discussed in a meeting between Trump, then-Acting Defense Secretary Chris Miller, and Joint Chiefs of Staff Chairman General Mark Milley days before the January 6, 2021, attack on the Capitol.

• Evidence related to the unauthorized retention of classified documents by Vice President Mike Pence.

When it produces documents to a defendant, the government only has to search for items within the possession of the prosecution team. Trump argued for a much broader definition of whom that includes. Judge Chutkan ordered the government to expand its search to include a few additional offices and personnel who had previously been working on the case but were not currently working on it. Judge Chutkan gave the government until October 26 to file a notice of compliance with the court’s order to provide additional discovery.

The government previously told the court it had provided everything it could access and is unaware of additional material that should be turned over to Trump. But the Judge’s order is an appropriate one that protects Trump’s right to discovery—in the federal system there is no “trial by surprise;” defendants are entitled to know what evidence the government intends to use against them and must be given access to any information that might help them establish a defense—and also creates a strong record if there is an appeal following any conviction. Judge Chutkan has treated both Trump and the government fairly here, ensuring that Trump receives information that he believes could help him prepare a defense and documenting that the government provided it by requiring the certification. It is slow progress, but it is progress.

Politics:

Former Georgia Governor Roy Barnes delivered a master class in speaking your mind yesterday. Some people deserve special treatment, and Governor Barnes gave it to Republican Congressman Jim Jordan yesterday. It’s civil discourse with a little twist of bless your heart attached.

After suggesting that Jim Jordan would benefit from an anger management class, Barnes, who characterized himself as “just a country lawyer,” took Jordan to task for talking about other people’s obligation to comply with Congressional subpoenas when Jordan himself never complied with one he received from the January 6 committee. Quoting Matthew 7:3, Barnes asks, “Why do you see the speck of sawdust in your brother’s eye, but do not notice the log that is in your own eye?” He explains to Jordan that in the South, we might say that his behavior is akin to “a skunk telling a possum its breath stinks.”

Barnes closes by suggesting Jordan take a “short break” from what he’s about and consider solving the problem of school mass shooters.

All in all, it’s an unexpectedly refreshing and frank letter. Long overdue, but still quite civil in tone.

Governor Barnes not only made his point, he made sure it would be widely seen. The letter is circulating everywhere. Here’s the lesson in dealing with power-hungry failed lawyers who don't understand that public service isn't about protecting themselves at the expense of others. Well done.

We’re in this together,

Joyce