The Week Ahead

August 6, 2023

We are well into hot indictment summer. The idea that with all of the evidence of criminal wrongdoing that’s been made public, any question could remain about whether Donald Trump has any place in the leadership of our nation is just mind boggling. But when the news is such a constant barrage, it could be hard for people to step back for long enough to take a breath and see the full scale of his criminality. Or perhaps it’s that Trump and his cronies flood the zone in an effort to keep people, especially their followers, from seeing the trees and focusing for long enough to break the fever dream on who Trump really is. It’s such an overgrown forest with Trump screeching “witch hunt” that it can be easy to miss the trees

I have never seen so much weekend commotion over a motion for continuance as we saw Saturday afternoon over the government’s request for a protective order. On both Twitter and Threads, as well as a number of chat groups I have with friends, people were following the action like they were watching a ping-pong match. First, Trump responded ahead of his Monday deadline, saying he needed more time. The government zinged back. The Judge responded saying no one was going anywhere and Trump’s response was still due Monday, which would give the parties plenty of time to confer and try to reach agreement. So that's where we ended up—status quo ante. Trump’s response is still due on Monday after all of the excitement.

Let’s try to go step by step through what happened so we know what to expect in the week ahead.

1. When last we Substacked together, it was Friday evening, and Trump had just posted his threatening “if you come after me, I’m coming after you” post on Truth Social. The government, which was already in the process of seeking a protective order to keep Trump from talking publicly about discovery it wants to turn over to him in the election interference prosecution, referenced the post as another indication he couldn’t be trusted.

2. Saturday morning, around 11:30 a.m., Judge Tanya Chutkan, who apparently doesn’t take weekends off, ordered Trump to respond to the government’s request by Monday at 5:00 p.m.

   

3. Trump’s team fired back, asking for three additional days to respond. Although they didn’t say so in the motion, I can only conclude that Trump’s lawyer, John Lauro, needed extra time so he could blanket the airwaves with appearances on news networks and cable stations over the weekend.

   

   Lauro helpfully explained that Trump was not committing crimes, just making aspirational statements to people like Mike Pence about precisely how he wanted them to end democracy.

4. Lawyers normally try to work with each other on brief requests for continuances. But Trump’s tactics have cost him that showing of good faith. The special counsel's office didn't miss a beat, filing a reply and asking the court to stick to the schedule. They noted that “Rather than spend time complying with the Court’s order, the defendant drafted a filing as to why he did not have time to review and consider the 5-page proposed protective order.” This is fair. The protective order is not complicated. At bottom, it simply protects disclosure of sensitive materials and grand jury materials. Trump’s team is free to use the discovery, they just can’t disclose it publicly in advance of trial, and are obligated to protected it if they share it with witnesses or others during their preparation.

5. Judge Chutkan denied Trump’s request to delay, delay, delay, and told Trump’s lawyers to get her their response to the protective order by Monday, as scheduled.

Interestingly, the government’s original motion asked the judge to put the protective order in place without giving Trump the opportunity to respond. They pointed out that under its terms, he was free to ask for a modification of it at any time. The government’s proposed order, as they advised Trump’s lawyers, was modeled on one recently used by a conservative Trump appointee to the D.C. District Court, Judge Carl Nichols.

The government is exceptionally eager to turn over its discovery at the earliest possible moment. This is unusual, and we see the government chomping at the bit here because they want to get discovery out early and then push for a prompt trial date. In giving Trump time to respond, albeit on an abbreviated schedule, the Judge is showing her colors as a former criminal defense lawyer, determined to be fair to the defendant, while moving the process along. This is really what you want from a judge—someone who protects the rights of both parties and moves the matter expeditiously towards a final decision.

Trump, however, doesn’t agree and after going on the attack against prosecutors and Mike Pence, now a witness against him, this weekend, he attacked the judge on social media too, just to round out his trifecta of terrible. Good luck on finding those “powerful grounds” Trump claims he’ll trot out to argue Judge Chutkan should be recused. They don’t exist.

If you get the feeling Trump is trying to push Judge Chutkan into entering a gag order or even revoking his bond and putting him in custody, you’re not alone. He’s a bully at heart, but he has also realized the fundraising potential in all of this. Look for the Judge to continue to be measured, but not at all a pushover, if this continues. She would be well within her rights to bring him into the courtroom for a stern conversation about his behavior. That might sound like a slap on the wrist, but having seen judges do this quite a number of times, it’s anything but. While Trump might like the idea of raising money to support his rising tide of lawyers, when it comes down to it, the idea of spending even a few nights in a D.C. jail likely terrifies him, even knowing he’d have his Secret Service detail along. No McDonald’s, for one thing.

From Jack Smith’s point of view, though, the goal is to avoid drama. A full-on bond revocation hearing from a former president would involve not only drama, but delay as decisions are appealed. Delay is what Smith has shown a single-minded willingness to fight back against, streamlining the indictment to exclude charges like incitement that could involve prolonged delays to evaluate First Amendment arguments, and even listing Trump’s co-conspirators without charging them, which helps to avoid delays like the ones we’re seeing in the Mar-a-Lago case as multiple defendants try to line up lawyers and queue their calendar. Look for Smith to try and stay clear of the sand traps along the sides of the road and drive straight up the middle towards as early of a trial date as possible.

But Trump is definitely pushing with his social media posts, perhaps trying to demonstrate that he’s not afraid of the judge—not really a great strategy when they’re the one who holds all the power in the courtroom. Trump’s post about Mike Pence, now a key witness against him, is the kind of thing that can get a defendant in trouble.

We may see the Judge admonish Trump without imposing a gag order, but if he continues to violate the rules, she may end up having no choice other than to make it formal. Defendants, especially those with a big megaphone attached to their mouths like Trump, don’t get to publicly denigrate the truthfulness of witnesses.

So, we can expect Trump’s response on the protective order issue Monday evening. And, undoubtedly, more drama this week, as we watch to see just how long the Judge’s patience will last. But this will set the process in motion. Once there is a protective order in place, discovery can proceed.

Trump has more issues—the roads around the Fulton County, Georgia courthouse will be closed off beginning tomorrow. An indictment in that case is thought to be coming late this week or sometime next week. You’ve got to wonder, if he gets to four, is there a fifth one headed his way for free? It’s a deadly serious moment, and yet in many ways it’s a joke that this man is still the leader of his party, the front runner for their nomination to be president again, their voice.

We’re in this together,

Joyce