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Tag: Special Counsel Jack Smith

  • Special counsel Jack Smith provides fullest picture yet of his 2020 election case against Trump in new filing

    Special counsel Jack Smith provides fullest picture yet of his 2020 election case against Trump in new filing

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    (CNN) — A federal judge in Washington, DC, has released the most comprehensive narrative to date of the 2020 election conspiracy case against Donald Trump, outlining what special counsel Jack Smith describes as the former president’s “private criminal conduct.”

    The 165-page document comes from Smith’s office and is the fullest accounting yet of evidence in the election subversion case against Trump.

    Throughout the document, Smith argues that the actions Trump took to overturn the election were in his private capacity – as a candidate – rather than in his official capacity, as a president. That argument flows from the Supreme Court’s decision in July, which granted the former president sweeping immunity for official actions but left the door open for prosecutors to pursue Trump for unofficial steps he took.

    ”At its core, the defendant’s scheme was a private one,” prosecutors wrote in the motion. “He extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.”

    The filing weaves together what prominent witnesses told a federal grand jury and the FBI about Trump, along with other never-before-disclosed evidence investigators gathered about the former president’s actions leading up to and on January 6, 2021.

    Releasing the motion, which was previously filed under seal, is the latest major development in Smith’s longstanding effort to prosecute Trump for actions he took to overturn the 2020 election, even as the former president is seeking a second term in a tight race with Vice President Kamala Harris. The case, which has already reached the Supreme Court once, has repeatedly been delayed as Trump has attempted to push off the prosecution until after the next month’s election.

    The document is broken into four sections. The first section lays out the case prosecutors said they would attempt to prove at trial, including a summary of evidence; the second section gives US District Judge Tanya Chutkan a roadmap for how to assess which actions are official – and therefore potentially covered by immunity – and which are not; the third section walks through how the principles should apply in Trump’s case; the fourth is a brief conclusion that asks Chutkan to rule that the actions described are not protected by immunity and that Trump “is subject to trial on the superseding indictment.”

    Trump campaign spokesman Steven Cheung called Smith’s narrative “falsehood-ridden” and “unconstitutional” in a statement provided to CNN after the former president’s team had fought the unsealing of the document.

    “Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power. President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes,” Cheung said.

    Campaign operative said ‘Make them riot’

    Prosecutors describe an effort by Trump operatives to “create chaos” in the immediate aftermath of the 2020 election when the voting looked to be going for Joe Biden.

    In Philadelphia, prosecutors allege campaign operatives sought to create confrontations at polling places and then “falsely claim that his election observers were being denied proper access” as a predicate to claim fraud.

    Prosecutors also raised the fracas at the Detroit Counting Center, pointing to evidence that a campaign staffer, upon learning a heavy incoming batch of votes leaned Biden, asked for “options to file litigation” even if (it) was “itbis[sic}.”

    The same campaign operative said “make them riot” when told that protests at the counting center were heading in the direction of the so-called Brooks Brothers Riot that disrupted the 2000 Florida count between Al Gore and George W. Bush.

    Prosecutors frame Trump conversations with Pence as ‘running mates’

    Even as they face a high bar for introducing evidence from former Vice President Mike Pence, Smith’s team sought to do so by framing a series of interactions between the two as conversations between “running mates,” where Pence tried to convince Trump he needed to accept his electoral defeat.

    They include a November 7, 2020, conversation where Pence allegedly told Trump that he should focus on how he revived the Republican Party, as well as Pence’s recollection of a Trump meeting with campaign staff, during which Trump was told the prospects of his election challenges looked bleak.

    At a November 12 lunch, Pence told Trump that he didn’t have to concede but he could “recognize process is over,” prosecutors said, and during a November 23 phone call, Trump allegedly told Pence that one of his private attorneys were skeptical about the election challenges.

    As part of those private conversations, prosecutors say, Pence “tried to encourage” Trump “as a friend” after news networks called the election for Biden. In other interactions, Pence encouraged Trump to consider running for reelection in 2024. Those interactions, prosecutors argued, were not at all related to Trump’s official duties as president.

    “The content of the conversations at issue – the defendant and Pence’s joint electoral fate and how to accept the election results – have no bearing on any function of the Executive Branch,” they wrote in the filing.

    Trump told family ‘it doesn’t matter if you won or lost the election’

    Prosecutors allege they have a witness who will testify that Trump told family members “it doesn’t matter if you won or lost the election. You still have to fight like hell.”

    The witness, Smith’s team said in the filing, will testify that he was aboard Marine One when then-President Trump made the statement to his wife Melania Trump, his daughter Ivanka Trump, and his son-in-law Jared Kushner.

    Prosecutors did not name the official in the filing, but they said he was the director of Oval Office operations. “He witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election,” prosecutors wrote.

    At the time, Ivanka and Jared were White House employees, serving as advisers to the president; and Melania was first lady.

    However, prosecutors claim that the conversation aboard Marine One was “plainly private” and had nothing to do with the Trump family’s official government responsibilities.

    “The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played),” prosecutors wrote.

    Trump told advisers he would declare victory

    Prosecutors say that Trump was told by advisers that the 2020 vote likely would not be finalized on Election Day and that he could misleadingly look ahead in the ballot count on election night only to fall behind once all of the ballots were counted. Nonetheless, Trump told his advisers that he would claim victory before the ballots were fully counted, prosecutors say.

    One private political adviser, three days before Election Day 2020, described Trump’s plan as: “He’s going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner,” according to the filing.

    That adviser, not identified by name by prosecutors, also described the Democratic lean of the mail ballot vote “a natural disadvantage” and said “Trump’s going to take advantage of it. That’s our strategy.”

    Trump sought to ‘perpetuate himself in power’

    Smith’s office stressed the private and political nature of Trump’s actions around the 2020 election.

    “The executive branch,” prosecutors wrote, “has no authority or function to choose the next president.”

    That argument appeared designed for federal appeals courts, including the Supreme Court, that have placed a heavy emphasis in recent years on the historical understanding of the separation of powers.

    In other words, Smith is arguing that Trump’s effort to overturn the election was necessarily private because the Constitution gives a president no official authority for choosing his successor.

    “The defendant’s charged conduct directly contravenes these foundational principles,” the motion reads. “He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.”

    White House staffer ‘P9’ details planning meetings

    Prosecutors focus in particular in the filing on what Trump learned from a White House staffer referred to in the filings as “P9,” as they try to show that Trump was well aware he had lost the election as he pressed on with the reversal schemes.

    The person, identified only as “P9,” appears to have personally had discussions over the phone about the fake electors strategy with Trump, and had repeated text conversations with other people in the campaign about how the strategy was “crazy” or “illegal,” according to the filing.

    When Trump told the staffer he would not pay the private lawyer spearheading his legal challenges unless the challenges were successful, the staffer told Trump that the private attorney would never be paid. That prompted a laugh and a “we’ll see” from Trump, the filings said. (The private attorney is identified by prosecutors as co-conspirator 1, who CNN has previously identified as Rudy Giuliani.)

    In a follow up conversation, the White House official told Trump that Giuliani would not be able to prove his false claims in a court and Trump told the staffer, “The details don’t matter.”

    The brief lays out several other interactions between the White House staffer and Trump in which Trump was told that the election fraud claims wouldn’t hold up in court.

    Prosecutors say they would call election officials in battleground states at Trump trial

    In the filing released Wednesday, prosecutors identify witnesses they hope to call at a trial to testify against Trump – including election officials in battleground states and his White House deputy chief of staff.

    The prosecutors say they also want to show a jury at trial Trump’s campaign speech on January 4, 2021, in Georgia, and his campaign speech on the Ellipse on January 6, 2021, just before the riot at the US Capitol.

    And, they’d like to show the jury tweets that they say can prove Trump was driving the public campaign of fraud in the election, as he knew there was none that was widespread enough to overturn his loss. They argue those tweets weren’t part of Trump’s official work as president.

    At trial, prosecutors say they would like to call the only other adviser to Trump who had access to his Twitter account to testify that Trump was sending tweets on January 6, 2021, that would put pressure on then-Vice President Mike Pence to stop the counting of the electoral votes at the Capitol. The person is described as White House deputy chief of staff.

    “The Government will elicit from Person 45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that person 45 did not send certain specific Tweets” – specifically a tweet Trump sent that said Pence didn’t have the courage to block the certification of the vote.

    That type of testimony would allow prosecutors to assert in court they have evidence of a moment like this:

    “At 2:24 p.m., Trump was alone in his dining room,” prosecutors write in the filing, “when he issued a Tweet attacking Pence and fueling the ongoing riot: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’”

    FBI experts can testify about how Trump used his phone on January 6, prosecutors say

    FBI experts have mapped out what Trump was doing on his phone while the US Capitol riot unfolded, Smith said.

    An FBI Computer Analysis Response Team forensic examiner can testify about “the news and social media applications” on Trump’s phone, Smith wrote in the filing, “and can describe the activity occurring on the phone throughout the afternoon of January 6.”

    Those logs show that Trump “was using his phone, and in particular, was using the Twitter application, consistently throughout the day after he returned from the Ellipse speech.”

    Smith said that three unidentified witnesses are also prepared to testify that on the afternoon of January 6, the television in the White House dining room where Trump spent much of the day was “on and tuned into news programs that were covering in real time the ongoing events in the Capitol.”

    That testimony would allow prosecutors to show a future jury what Trump saw unfolding on TV while he made comments and posted online that afternoon.

    Prosecutors lean on Hatch Act to bolster Trump charges

    Smith is again using the Hatch Act – which limits the political activities of federal employees – to bolster their 2020 election subversion charges against former President Donald Trump.

    Prosecutors said in a new filing that the Hatch Act allows White House staffers to “wear two hats,” separating out their official conduct to serve the public from their political conduct to help a candidate.

    Therefore, even if some of Trump’s alleged wrongdoing occurred on White House grounds and in front of White House staff, he doesn’t have immunity because that fell under the “political” umbrella, Smith’s team wrote.

    “When the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities,” prosecutors wrote. “And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct.”

    Bill Barr decided to speak out against Trump’s election lies after seeing him on Fox News

    Then-Attorney General Bill Barr decided in 2020 to publicly rebut Trump’s false claims that the election was rigged after watching Trump spread these lies on Fox News, prosecutors say.

    “On November 29, [Barr] saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was ‘missing in action’ and had ignored evidence of fraud,” prosecutors wrote.

    They continued, “[Barr] decided it was time to speak publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the Associated Press, and made his statement.”

    This was the December 1, 2020, statement in which Barr infamously said the Justice Department had looked into potential election irregularities but didn’t find any widespread fraud that could’ve tipped the results. This was a major move by Barr, a lifelong Republican who at the time was a staunch Trump ally.

    Barr’s name is redacted in the filing, and he is referred to as “P52.” But P52 is described as the “attorney general,” and Barr was the attorney general at that time.

    Barr resigned just before Christmas 2020.

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  • Special counsel files evidence under seal against Trump in election subversion case

    Special counsel files evidence under seal against Trump in election subversion case

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    (CNN) — Filings from special counsel Jack Smith laying out never-before-seen evidence in the election subversion case against Donald Trump – including interview transcripts and notes from an investigation that counted among its witnesses former Vice President Mike Pence, Ivanka Trump and former White House chief of staff Mark Meadows – are now in the hands of a federal court.

    It will now be up to District Judge Tanya Chutkan to determine how much of that evidence the public gets to see and when they will be able to see it.

    Prosecutors filed the documents under seal as of 4:40 p.m. ET, according to Peter Carr, the special counsel office’s spokesman.

    The court submissions could eventually provide Americans with the most comprehensive view they’ll ever get of Smith’s case alleging that Trump conspired to defraud the United States in his efforts to overturn his 2020 electoral loss.

    The filings are expected to include grand jury transcripts, the FBI’s formal notes from witness interviews and documentary evidence, as part of an effort by prosecutors to argue that their reworked indictment can survive under the Supreme Court’s recent presidential immunity ruling.

    The Supreme Court ruling has required the prosecutors to convince Chutkan – and likely, higher courts – that Trump was not acting in his official capacity when he and his supporters took various actions, culminating in the January 6, 2021, attack on the US Capitol, to stave off his 2020 defeat.

    It is likely the filings will dig into Trump’s pressure campaign on Pence – conduct that the Supreme Court indicated might be covered under immunity. The brief is also likely to lay out what investigators have learned about the circumstances of the January 6, 2021, Ellipse rally, while potentially providing more detail about endeavors by Trump and his allies to convince state officials to block certification of the 2020 results.

    They have also indicated plans to file a version with proposed redactions – also under seal – that could ultimately be posted to the court’s public docket.

    Smith previously secured permission to file a brief as long as 180 pages – four times the normal page length. That brief does not include the “substantial” numbered exhibits prosecutors plan to attach to their arguments that will offer up key evidence. The footnotes alone citing their various exhibits would account for more than 30 pages of the main brief, prosecutors have said.

    The former president vehemently opposed the plan to file the Smith immunity brief now, as his lawyers equated the brief to the types of special counsel reports that aren’t released until after the work of a special counsel is done.

    Chutkan, in a Tuesday opinion explaining why she would greenlight the prosecutors’ filing plan, leaned on the Supreme Court’s own language in its July immunity ruling, which said Trump had absolute immunity for conduct related to his “core” executive branch duties. For other official acts as president, a “presumptive” immunity can be overcome if prosecutors can show that criminalizing such conduct would not interfere with the functions of the executive branch, according to the high court’s 6-3 ruling.

    Chutkan said Tuesday that the Supreme Court had directed her to “conduct a ‘close’ and ‘fact specific’” analysis “of the indictment’s extensive and interrelated allegations.’”

    “It anticipated that the analysis would require briefing on how to characterize ‘numerous alleged interactions with a wide variety of state officials and private persons,’ … and supplementing other allegations with ‘content, form, and context’ not contained in the indictment itself,” Chutkan wrote of the Supreme Court’s ruling.

    Trump will have the opportunity to respond to the prosecutors’ brief with a filing due October 17.

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    Katelyn Polantz, Tierney Sneed and CNN

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  • The Supreme Court Is Shaming Itself

    The Supreme Court Is Shaming Itself

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    Produced by ElevenLabs and News Over Audio (NOA) using AI narration.

    Donald Trump is determined to avoid accountability before the general election, and, so far, the U.S. Supreme Court is helping him.

    Trump has no legal ground whatsoever to delay a ruling in his plea for presidential immunity. The reason Trump has nevertheless sought to slow down the immunity appeals process is obvious: to postpone the trial date, hopefully pushing it into a time when, as president, he would control the Department of Justice and thus could quash the prosecution altogether. The Supreme Court has shamed itself by being a party to this, when the sole issue before the Court is presidential immunity. By contrast, Special Counsel Jack Smith has both law and policy on his side in seeking a prompt determination on immunity and a speedy trial soon thereafter. Yet the Court has ignored all that.

    David A. Graham: The cases against Trump–a guide

    The Supreme Court’s lollygagging is reflected in its scheduling the immunity case for a leisurely April 25 hearing. It’s too late to do anything about that now, but the Court has an opportunity to correct course following oral argument. The justices should press Trump’s counsel on what possible legitimate reason he has to oppose a speedy resolution of the appeal. And then they should rule with dispatch because there is still time, albeit barely, to vindicate the public’s right to a speedy trial.

    Let’s recap how we arrived at the present moment. After Judge Tanya Chutkan ruled against Trump’s claim of presidential immunity on December 1 and Trump appealed that ruling to the D.C. Circuit, Smith asked the Supreme Court to hear the appeal immediately, leapfrogging the delay of the circuit-level argument and decision. Trump opposed that, and the Supreme Court declined Smith’s invitation. The circuit court expedited its appeal and on February 6 issued its decision, again rejecting Trump’s immunity argument in toto. Trump then sought a stay in the Supreme Court, and advocated various measures to slow the Court’s hearing of the case. The Supreme Court then deliberated for a couple of weeks before accepting the case for review, and not scheduling the argument until two months later—on the very last day of oral arguments for this session.

    Were he not seeking to avoid any trial in advance of the general election so he could maximize the chances of becoming the next president of the United States, Trump would have an interest in a speedy resolution of the immunity question, in contrast to the foot-dragging positions he has advocated throughout the litigation of this issue. Anyone with a legitimate claim of immunity has every interest in not suffering a single day more under the opprobrium of multiple criminal charges, not to mention being under pretrial bail conditions and a gag order. (Trump’s lawyers have argued against his existing gag order, saying it sweeps so broadly as to undermine their client’s ability to campaign for the presidency.)

    The law itself recognizes the need for speed on this issue. With questions of immunity, courts permit an appeal in advance of a trial and forgo the usual rule that appeals are permitted only after a verdict is reached. The hope, in allowing for this, is to relieve someone from the opprobrium and burden of a trial, if the defendant is indeed immune. For the Court to set such a prolonged schedule—antithetical to the appropriate time frame for the only issue actually before the justices—speaks volumes about the role the Court has chosen to play in advancing the interests of the former president over the rule of law.

    The government has its own interests in seeking a prompt resolution of the immunity issue and a speedy criminal trial (and it has the same interest as a defendant in not subjecting someone to criminal charges who is immune from prosecution). But before delving into the government’s interests, let’s first dispense with a red herring: Special Counsel Smith is not disputing that Trump should be accorded sufficient time to prepare for trial. An inviolable constitutional safeguard is that all criminal defendants must be able to exercise their procedural rights to prepare. Judge Chutkan already weighed the parties’ competing claims. Her decision on a trial date fell well within the mark for similar cases, and that ruling is not on appeal (despite the Supreme Court’s behaving as if it were).

    The district judge’s selected timeline (seven months from the August 1 indictment), in a case whose facts and substantial evidence were already available to the defendant, was longer than deadlines set all around the country. By way of comparison, next door in the more conservative Virginia district, defendants routinely go to trial at great speed, without conservative commentators going to the barricades over alleged violations of the rights of the accused. That Trump is a rich, white, and politically powerful man does not mean he should be accorded more (or fewer) rights than others. And Chutkan has said that when the case returns to her, she will give Trump more time to prepare.

    David A. Graham: Judge Chutkan’s impossible choice

    With Trump’s rights intact, then, Smith has several legitimate grounds for the immunity appeal to be decided expeditiously and a trial to start as promptly as possible. DOJ internal policy prohibits taking action in a case for “the purpose of” choosing sides in or affecting the outcome of an election. That is unquestionable and not in dispute here. Rather, the point is that well-established neutral criminal-justice principles support a speedy trial. This trial’s outcome, of course, is not known in advance, and it may lead some voters to think better or worse of the defendant and the current presidential administration depending on the evidence and the outcome.

    Moreover, the public has a profound interest in a fair and speedy trial. As Justice Samuel Alito wrote for a unanimous Supreme Court, the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.” The refrain that “justice too long delayed is justice denied” has unmistakable resonance in this criminal context. The special counsel’s briefs in the D.C. case are replete with references to this well-settled case law. This means that even when the accused is seeking to delay his day in court, that “does not alter the prosecutor’s obligation to see to it that the case is brought on for trial,” as the Supreme Court has well articulated. Many defendants seek to avoid the day of reckoning—hence Edward Bennett Williams’s famous quip that for the defense, an adjournment is equivalent to an acquittal. The law provides that the public, the prosecution, and most emphatically the courts need not oblige that stratagem.

    What’s more, when a defendant seeks to postpone a trial until a point at which he can no longer be prosecuted, the Justice Department may request the trial be held before that deadline. The DOJ’s interest in deterrence and accountability warrants this action. If Trump should win the election, he will become immune as president from criminal trial for at least four years (and perhaps forever by seeking dismissal of the federal case with prejudice or testing the efficacy of granting himself a pardon). The Justice Department can accordingly uphold the public interest in deterrence and accountability by seeking the prompt conviction of the leader of an insurrection. This DOJ need not advance the goals of a future administration led by that very “oathbreaking insurrectionist.”

    Another objective of criminal punishment is “specific deterrence,” ensuring the defendant herself does not commit offenses in the future. Given the grand jury’s determination that Trump committed felonies to try to interfere with the 2020 election, there are strong law-enforcement reasons to obtain a conviction to specifically deter Trump. Indeed, in proposing a trial date to Judge Chutkan, Smith quoted Justice Alito, on behalf of the whole Court, that speedy trials “serve the public interest by … preventing extended pretrial delay from impairing the deterrent effect of punishment.”

    Trump’s public denigration of the legal system—the incessant claims that the criminal case is a witch hunt—also gives a nation committed to the rule of law a vital interest in holding a public trial where a jury can assess Trump’s actions. Trials can thus serve to restore faith in the justice system.

    It is worth noting that when the government seeks its day in court, it simultaneously affords the defendant his day in court—providing him more process, not less. Indeed, the Department of Justice’s so-called 60-day rule—which generally forbids it from taking overt actions in non-public cases with respect to political candidates and closely related people right before an election—is there to avoid a federal prosecutor hurling untested new allegations against a political candidate precisely because he would not have time to clear his reputation before the election. Here, the government is seeking to provide just that forum for Trump to clear his name before the election—to test the criminal allegations against the highest legal standard we have for adjudicating facts—and yet right-wing critics attack Smith. Trump of course wants to avoid that test, but that is an interest the courts should abjure.

    The justices still have time to get back on track. Trump’s claim that presidents have absolute immunity should be an easy issue to resolve given these criminal charges. Whether a president should have criminal immunity in some specific circumstances is an abstract question for another day, because efforts to stay in office and use the levers of the presidency are certainly not those specific circumstances. The appeals have delayed matters long enough at the expense of the right of the American people to a fair and speedy trial. Let them not stand in the way of ever having a trial at all.

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    Andrew Weissmann

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  • Special Counsel Jack Smith urges Supreme Court to deny Trump’s request to delay trial

    Special Counsel Jack Smith urges Supreme Court to deny Trump’s request to delay trial

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    After Donald Trump’s immunity requests were rejected by the D.C. Circuit, Special Counsel Jack Smith was given one week to file his brief to the Supreme Court. Trump has requested to stay (or put the case on hold) regarding his insurrection charges in Washington, D.C. Today, Smith immediately issued a 39-page response. Smith says the speedy trial is of public interest.

    “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former president for alleged criminal efforts to overturn the results of the presidential election, including through the use of official power,” Smith’s filing said.

    Trump plans on delaying the start of the trial in so that the D.C. Circuit could rehear the case. If he lost, the appeal a second time, he would then escalate the case to the United States Supreme Court.


    Itoro Umontuen currently serves as Managing Editor of The Atlanta Voice. Upon his arrival to the historic publication, he served as their Director of Photography. As a mixed-media journalist, Umontuen…
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    Itoro N. Umontuen

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  • Supreme Court will hear a case that could undo Capitol riot charge against hundreds, including Trump

    Supreme Court will hear a case that could undo Capitol riot charge against hundreds, including Trump

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    WASHINGTON (AP) — The Supreme Court on Wednesday said it will hear an appeal that could upend hundreds of charges stemming from the Capitol riot, including against former President Donald Trump.

    The justices will review an appellate ruling that revived a charge against three defendants accused of obstruction of an official proceeding. The charge refers to the disruption of Congress’ certification of Joe Biden’s 2020 presidential election victory over Trump.

    That’s among four counts brought against Trump in special counsel Jack Smith’s case that accuses the 2024 Republican presidential primary front-runner of conspiring to overturn the results of his election loss. Trump is also charged with conspiracy to obstruct an official proceeding.

    The court’s decision to weigh in on the obstruction charge could threaten the start of Trump’s trial, currently scheduled for March 4. The justices separately are considering whether to rule quickly on Trump’s claim that he can’t be prosecuted for actions taken within his role as president. A federal judge already has rejected that argument.

    The Supreme Court will hear arguments in March or April, with a decision expected by early summer.

    The obstruction charge has been brought against more than 300 defendants in the massive federal prosecution following the deadly insurrection on Jan. 6, 2021, when a mob of Trump supporters stormed the Capitol in a bid to keep Biden, a Democrat, from taking the White House.

    A lower court judge had dismissed the charge against Joseph Fischer, a former Boston police officer, and two other defendants, ruling it didn’t cover their conduct. The justices agreed to hear the appeal filed by lawyers for Fischer, who is facing a seven-count indictment for his actions on Jan. 6, including the obstruction charge.

    The other defendants are Edward Jacob Lang, of New York’s Hudson Valley, and Garret Miller, who has since pleaded guilty to other charges and was sentenced to 38 months in prison. Miller, who’s from the Dallas area, could still face prosecution on the obstruction charge.

    U.S. District Judge Carl Nichols found that prosecutors stretched the law beyond its scope to inappropriately apply it in these cases. Nichols ruled that a defendant must have taken “some action with respect to a document, record or other object” to obstruct an official proceeding under the law.

    The Justice Department challenged that ruling, and the appeals court in Washington agreed with prosecutors in April that Nichols’ interpretation of the law was too limited.

    Other defendants, including Trump, are separately challenging the use of the charge.

    More than 1,200 people have been charged with federal crimes stemming from the riot, and more than 650 defendants have pleaded guilty.

    ___

    Follow the AP’s coverage of the U.S. Supreme Court at https://apnews.com/hub/us-supreme-court.

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  • How Trump Gets Away With It

    How Trump Gets Away With It

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    If Donald Trump regains the presidency, he will once again become the chief law-enforcement officer of the United States. There may be no American leader less suited to “take Care that the Laws be faithfully executed,” as the Constitution directs the president. But that authority comes with the office, including command of the Justice Department and the FBI.

    We know what Trump would like to do with that power, because he’s said so out loud. He is driven by self-interest and revenge, in that order. He wants to squelch the criminal charges now pending against him, and he wants to redeploy federal prosecutors against his enemies, beginning with President Joe Biden. The important question is how much of that agenda he could actually carry out in a second term.

    Explore the January/February 2024 Issue

    Check out more from this issue and find your next story to read.

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    Trump tried and failed to cross many lines during his time in the White House. He proposed, for example, that the IRS conduct punitive audits of his political antagonists and that Border Patrol officers shoot migrants in the legs. Subordinates talked the former president out of many such schemes or passively resisted them by running out the clock. The whole second volume of Special Counsel Robert Mueller’s report, which documented 10 occasions on which Trump tried to obstruct justice, can be read as a compilation of thwarted directives.

    From the November 2023 issue: How General Mark Milley protected the Constitution from Donald Trump

    The institutional resistance Trump faced has reinforced his determination to place loyalists in key jobs should he win reelection. One example is Jeffrey Clark, who tried to help Trump overturn the 2020 election. Trump sought to appoint Clark as acting attorney general in early January 2021, but backed off after a mass-resignation threat at the DOJ. People who know him well suggest that he would not let that threat deter him a second time. Trump will also want to fire Christopher Wray, the FBI director, and replace him with someone more pliable. Only tradition, not binding law, prevents the president and his political appointees from issuing orders to the FBI about its investigations.

    The top jobs at the DOJ require Senate confirmation, and even a Republican Senate might not confirm an indicted conspirator to overturn an election like Clark for attorney general. Under the Vacancies Reform Act, which regulates temporary appointments, Trump can appoint any currently serving Senate-confirmed official from anywhere in the executive branch as acting attorney general. Of course, all of the officials serving at the beginning of his new term would be holdovers from the Biden administration.

    Trump’s allies are searching for loyalists among the Republicans currently serving on several dozen independent boards and commissions, such as the Federal Trade Commission, that have “party balancing” requirements for their appointees. Alternatively, Trump could choose any senior career official in the Justice Department who has served for at least 90 days in a position ranked GS-15 or higher on the federal pay scale—a cohort that includes, for example, senior trial attorneys, division counsels, and section chiefs. As Anne Joseph O’Connell, a Stanford law professor and an expert on the Vacancies Reform Act, reminded me, “This is how we got Matthew Whitaker,” the former attorney general’s chief of staff, as acting attorney general. (Whitaker was widely criticized as unqualified.)

    Would some career officials, somewhere among the department’s 115,000 employees, do Trump’s bidding in exchange for an acting appointment? Trump’s team is looking.

    Once Trump has installed loyalists in crucial posts, his first priority—an urgent one for a man facing 91 felony charges in four jurisdictions—would be to save himself from conviction and imprisonment.

    Of the four indictments against him, two are federal: the Florida case, with charges of unlawful retention of classified documents and obstruction of justice, and the Washington case, which charges Trump with unlawful efforts to overturn the 2020 election. Those will be the easiest for him to dispose of.

    To begin with, there is little to stop Trump from firing Special Counsel Jack Smith, who is overseeing both of the federal investigations. Justice Department regulations confer a measure of protection on a special counsel against arbitrary dismissal, but he may be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” That last clause is a catchall that Trump could readily invoke.

    David A. Graham: The cases against Trump: A guide

    The regulations state that a special counsel may be fired “only by the personal action of the Attorney General,” but that would not stop Trump either. In the unlikely event that his handpicked attorney general were reluctant, he could fire the attorney general and keep on firing successors until he found one to do his bidding, as Richard Nixon did to get rid of Archibald Cox. Alternatively, Trump could claim—and probably prevail, if it came to a lawsuit—that the president is not bound by Justice Department regulations and can fire the special counsel himself.

    Smith’s departure would still leave Trump’s federal criminal charges intact, but no law would prevent Trump from ordering that they be dropped. He could do so even with a trial in progress, right up to the moment before a jury returned a verdict. No legal expert I talked with expressed any doubt that he could get away with this.

    Dismissing the charges would require the trial judges’ consent. But even if the judges were to object, Trump would almost certainly win on appeal: The Supreme Court is not likely to let a district judge decide whether or not the Justice Department has to prosecute a case.

    Trump will be able to avoid going to prison even if he has already been convicted of federal charges before he is sworn in. Here again, a trial judge is unlikely to order Trump imprisoned, even after sentencing, before he exhausts his appeals. And there is no plausible scenario in which that happens before Inauguration Day.

    At any time while Trump’s appeals are pending, his Justice Department may notify the appellate court that the prosecution no longer wishes to support his conviction. This is known as a confession of error on the government’s part; the effect, if the court grants the request, is to vacate a conviction. Under Attorney General Bill Barr, the Trump administration did something to similar effect in a false-statements case against former National Security Adviser Michael Flynn, moving to dismiss the charges after Flynn had pleaded guilty but before his sentencing. (Trump later pardoned Flynn.) According to the relevant rule of criminal procedure, dismissal during prosecution—including on appeal from a conviction—requires “leave of the court,” but it’s highly unlikely that an appellate court would refuse to grant such a motion to dismiss.

    Trump might also invoke the pardon power on his own behalf. He has already asserted, as far back as 2018, that “I have the absolute right to PARDON myself.” No president has ever tried this, and whether he can is a contested question among legal scholars. Experts who agree with Trump say the Constitution frames the pardon power as total but for one exception, implicitly blessing all other uses. (The exception is that the president may not pardon an impeachment.) Those who disagree include the Justice Department itself, through its Office of Legal Counsel, which concluded in 1974 that a self-pardon would be invalid under “the fundamental rule that no one may be a judge in his own case.”

    But the debate over self-pardons wouldn’t matter much to Trump in practice. If he pardoned himself of all criminal charges, there would be no one with standing to challenge the pardon in court—other than, perhaps, the Justice Department, which would be under Trump’s control.

    Unlike the federal charges, Trump’s state criminal cases—for alleged racketeering and election interference in Georgia and hush-money payments to a porn star in New York—would not fall under his authority as president. Even so, the presidency would very likely protect him for at least the duration of his second term.

    The Office of Legal Counsel, which makes authoritative interpretations of the law for the executive branch, has twice opined, in 1973 and again in 2000, that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That conclusion is binding for federal prosecutors, but state prosecutors are not obliged to follow it.

    No one knows what would happen if Fani Willis, the district attorney in Fulton County, Georgia, or Alvin Bragg, the DA in New York, decided to press ahead with their cases against Trump should he regain the presidency. Like so many outlandish questions pertaining to Trump, this one has no judicial precedent, because no sitting president has ever been charged with felony crimes. But legal scholars told me that Trump would have strong arguments, at least, to defer state criminal proceedings against him until he left the White House in 2029. By then, new prosecutors, with new priorities, may have replaced Willis and Bragg.

    Trump has named a long list of people as deserving of criminal charges, or execution. Among them are Joe Biden, Mark Milley, James Comey, Andrew McCabe, John Brennan, James Clapper, and Arthur Engoron, the judge in his New York civil fraud case.

    If he returns to office, Trump may not even have to order their prosecutions himself. He will be surrounded by allies who know what he wants. One likely DOJ appointee is Mike Davis, a Republican who has substantial government credentials: He was a law clerk for Supreme Court Justice Neil Gorsuch and chief counsel for nominations to Senator Charles Grassley when Grassley chaired the Judiciary Committee.

    If Davis were acting attorney general, he said on a right-wing YouTube show, he would “rain hell on Washington.” First, “we’re gonna fire a lot of people in the executive branch, in the deep state.” He would also “indict Joe Biden and Hunter Biden and James Biden and every other scumball, sleazeball Biden.” And “every January 6 defendant is gonna get a pardon.” Trump could not immediately appoint an outsider like Davis attorney general. But he could make him a Justice Department section chief, and then appoint him as acting attorney general after 90 days.

    Trump could also appoint—or direct his attorney general to appoint—any lawyer, at any time, as special counsel to the Justice Department, with the authority to bring charges and prosecute a case. Trump might not be able to convict his political enemies of spurious charges, but he could immiserate them with years of investigations and require them to run up millions of dollars in legal fees.

    Likewise, if he managed to place sufficiently zealous allies in the Office of Legal Counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions. Vice President Dick Cheney did that in the George W. Bush administration, inducing the OLC to issue opinions that authorized torture and warrantless domestic surveillance. Those opinions were later repudiated, but they guided policy for years. Trump’s history suggests that he might seek comparable legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of Congress, the Supreme Court, and the career civil service to say no.

    It occurred to me, as I interviewed government veterans and legal scholars, that they might be blinkered by their own expertise when they try to anticipate what Trump would do. All of the abuses they foresee are based on the ostensibly lawful powers of the president, even if they amount to gross ruptures of legal norms and boundaries. What transgressions could he commit, that is, within the law?

    But Trump himself isn’t thinking that way. On Truth Social, in December 2022, he posted that righting a wrong of sufficient “magnitude” (in this case, his fictitious claim of election fraud) “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

    The “take Care” clause of the Constitution calls for the president to see that laws are carried out faithfully. But what if a court rules against Trump and he simply refuses to comply? It’s not obvious who would—or could—enforce the ruling.

    This article appears in the January/February 2024 print edition with the headline “Trump Will Get Away With It.”

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    Barton Gellman

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  • The Courtroom Is a Very Unhappy Place for Donald Trump

    The Courtroom Is a Very Unhappy Place for Donald Trump

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    No one wants to appear before a judge as a criminal defendant. But court is a particularly inhospitable place for Donald Trump, who conceptualizes the value of truth only in terms of whether it is convenient to him. His approach to the world is paradigmatic of what the late philosopher Harry Frankfurt defined as bullshit: Trump doesn’t merely obscure the truth through strategic lies, but rather speaks “without any regard for how things really are.” This is at odds with the nature of law, a system carefully designed to evaluate arguments on the basis of something other than because I say so. The bullshitter is fundamentally, as Frankfurt writes, “trying to get away with something”—while law establishes meaning and imposes consequence.

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    The upcoming trials of Trump—in Manhattan; Atlanta; South Florida; and Washington, D.C.—will not be the first time he encounters this dynamic. His claims of 2020 election fraud floundered before judges, resulting in a series of almost unmitigated losses. In one ruling that censured and fined a team of Trump-aligned lawyers who had pursued spurious fraud allegations, a federal judge in Michigan made the point bluntly. “While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced,” she wrote, “such expressions are neither permitted nor welcomed in a court of law.”

    But only now is Trump himself appearing as a criminal defendant, stripped of the authority and protections of the presidency, before judges with the power to impose a prison sentence. The very first paragraph of the Georgia indictment marks this shift in power. Contrary to everything that Trump has tried so desperately to prove, the indictment asserts that “Trump lost the United States presidential election held on November 3, 2020”—and then actively sought to subvert it.

    David A. Graham: The Georgia indictment offers the whole picture

    Although Trump loves to file lawsuits against those who have supposedly wronged him, the courtroom has never been his home turf. Records from depositions over the years show him to be sullen and impatient while under oath, like a middle schooler stuck in detention. Timothy L. O’Brien, a journalist whom Trump unsuccessfully sued for libel in 2006, recalled in Bloomberg that his lawyers forced Trump to acknowledge that he had lied over the years about a range of topics. Trump has seemed similarly ill at ease during his arraignments. When the magistrate judge presiding over his arraignment in the January 6 case asked whether he understood that the conditions of his release required that he commit no more crimes, he assented almost in a whisper.

    All of this has been a cause for celebration among Trump’s opponents—because the charges against him are warranted and arguably overdue, but also for a different reason. The next year of American politics will be a twin drama unlike anything the nation has seen before, played out in the courtroom and on the campaign trail, often at the same time. Among Democrats, the potential interplay of these storylines has produced a profound hope: Judicial power, they anticipate, may scuttle Trump’s chances of retaking the presidency, and finally solve the political problem of Donald Trump once and for all.

    It has become conventional wisdom that nothing can hurt Trump’s standing in the polls. But his legal jeopardy could, in fact, have political consequences. At least some proportion of Republicans and independents are already paying attention to Trump’s courtroom travails, and reassessing their prior beliefs. A recent report by the political-science collaborative Bright Line Watch found that, following the Mar-a-Lago classified-documents indictment in June, the number of voters in each group who believed that Trump had committed a crime in his handling of classified information jumped by 10 percentage points or more (to 25 and 46 percent, respectively).

    And despite Trump’s effort to frame January 6 as an expression of mass discontent by the American people, the insurrection has never been popular: Extremist candidates who ran on a platform of election denial in the 2022 midterms performed remarkably poorly in swing states. Ongoing criminal proceedings that remind Americans again and again of Trump’s culpability for the insurrection—among his other alleged crimes—seem unlikely to boost his popularity with persuadable voters. If he appears diminished or uncertain in court, even the enthusiasm of the MAGA faithful might conceivably wane.

    Quinta Jurecic: The triumph of the January 6 committee

    Above all of this looms the possibility of a conviction before Election Day, which has no doubt inspired many Democratic fantasies. If Trump is found guilty of any of the crimes of which he now stands accused, a recent poll shows, almost half of Republicans say they would not cast their vote for him.

    But that outcome is only one possibility, and it does not appear to be the most likely.

    Americans who oppose Trump—and, more to the point, who wish he would disappear as a political force—have repeatedly sought saviors in legal institutions. The early Trump years saw the lionization of Special Counsel Robert Mueller as a white knight and (bewilderingly) a sex symbol. Later, public affection turned toward the unassuming civil servants who testified against Trump during his first impeachment, projecting an old-school devotion to the truth that contrasted with Trump’s gleeful cynicism. Today, Mueller’s successors—particularly Special Counsel Jack Smith and Fulton County District Attorney Fani Willis, who is leading the Georgia prosecution—are the subjects of their own adoring memes and merchandise. One coffee mug available for purchase features Smith’s face and the text Somebody’s Gonna Get Jacked Up!

    Perhaps this time will be different. With Trump out of office, Smith hasn’t been limited, as Mueller was, by the Justice Department’s internal guidance prohibiting the indictment of a sitting chief executive. Willis, a state prosecutor, operates outside the federal government’s constraints. And neither Bill Barr nor Republican senators can stand between Trump and a jury.

    The indictments against Trump have unfolded in ascending order of moral and political importance. In April, the Manhattan district attorney, Alvin Bragg, announced charges for Trump’s alleged involvement in a hush-money scheme that began in advance of the 2016 election. In June came Smith’s indictment of Trump in Florida, over the ex-president’s hoarding of classified documents at Mar-a-Lago. Two months later, the special counsel unveiled charges against Trump for his attempts to overturn the 2020 election. Willis’s indictment in Georgia quickly followed, employing the state’s racketeering statute to allege a widespread scheme to subvert the vote in favor of Trump. (He has pleaded not guilty in the first three cases and, as of this writing, was awaiting arraignment in Georgia. The Trump campaign released a statement calling the latest indictment “bogus.”)

    But each case has its own set of complexities. The New York one is weighed down by a puzzling backstory—of charges considered, not pursued, and finally taken up after all—that leaves Bragg’s office open to accusations of a politically motivated prosecution. The indictment in Florida seems relatively open-and-shut as a factual matter, but difficult to prosecute because it involves classified documents not meant to be widely shared, along with a jury pool that is relatively sympathetic to Trump and a judge who has already contorted the law in Trump’s favor. In the January 6 case, based in Washington, D.C., the sheer singularity of the insurrection means that the legal theories marshaled by the special counsel’s office are untested. The sweeping scope of the Georgia indictment—which involves 19 defendants and 41 criminal counts—may lead to practical headaches and delays as the case proceeds.

    Trump’s army of lawyers will be ready to kick up dust and frustrate each prosecution. As of July, a political-action committee affiliated with Trump had spent about $40 million on legal fees to defend him and his allies. The strategy is clear: delay. Trump has promised to file a motion to move the January 6 proceedings out of Washington, worked regularly to stretch out ordinary deadlines in that case, and tried (unsuccessfully) to move the New York case from state to federal court. The longer Trump can draw out the proceedings, the more likely he is to make it through the Republican primaries and the general election without being dragged down by a conviction. At that point, a victorious Trump could simply wait until his inauguration, then demand that the Justice Department scrap the federal cases against him. Even if a conviction happens before Americans go to the polls, Trump is almost certain to appeal, hoping to strand any verdict in purgatory as voters decide whom to support.

    Currently, the court schedule is set to coincide with the 2024 Republican primaries. The Manhattan trial, for now, is scheduled to begin in March. In the Mar-a-Lago case, Judge Aileen Cannon has set a May trial date—though the proceedings will likely be pushed back. In the January 6 case, Smith has asked for a lightning-fast trial date just after New Year’s; in Georgia, Willis has requested a trial date in early March. But still, what little time is left before next November is rapidly slipping away. In all likelihood, voters will have to decide how to cast their ballot before the trials conclude.

    The pileup of four trials in multiple jurisdictions would be chaotic even if the defendant were not a skillful demagogue running for president. There’s no formal process through which judges and prosecutors can coordinate parallel trials, and that confusion could lead to scheduling mishaps and dueling prosecutorial strategies that risk undercutting one another. For instance, if a witness is granted immunity to testify against Trump in one case, then charged by a different prosecutor in another, their testimony in the first case might be used against them in the second, and so they might be reluctant to talk.

    In each of the jurisdictions, defendants are generally required to sit in court during trial, though judges might make exceptions. This entirely ordinary restriction will, to some, look politically motivated if Trump is not allowed to skip out for campaign rallies, though conversely, Trump’s absence might not sit well with jurors who themselves may wish to be elsewhere. All in all, it may be hard to shake the appearance of a traveling legal circus.

    Attacking the people responsible for holding him to account is one of Trump’s specialties. Throughout the course of their respective investigations, Trump has smeared Bragg (who is Black) as an “animal,” Willis (who is also Black) as “racist,” and Smith as “deranged.” Just days after the January 6 case was assigned to Judge Tanya Chutkan, Trump was already complaining on his social-media site, Truth Social, that “THERE IS NO WAY I CAN GET A FAIR TRIAL” with Chutkan presiding (in the January 6 cases she has handled, she has evinced little sympathy for the rioters). Anything that goes wrong for Trump during the proceedings seems destined to be the subject of a late-night Truth Social post or a wrathful digression from the rally stage.

    However damning the cases against Trump, they will matter to voters only if they hear accurate accounts of them from a trusted news source. Following each of Trump’s indictments to date, Fox News has run segment after segment on his persecution. A New York Times /Siena College poll released in July, after the first two indictments, found that zero percent of Trump’s loyal MAGA base—about 37 percent of Republicans—believes he committed serious federal crimes.

    And beyond the MAGA core? A recent CBS News poll showed that 59 percent of Americans and 83 percent of self-described non-MAGA Republicans believe the investigations and indictments against Trump are, at least in part, attempts to stop him politically. Trump and his surrogates will take every opportunity to stoke that belief, and the effect of those efforts must be balanced against the hits Trump will take from being on trial. Recent poll numbers show Trump running very close to President Joe Biden even after multiple indictments—a fairly astonishing achievement for someone who is credibly accused of attempting a coup against the government that he’s now campaigning to lead.

    The law can do a great deal. But the justice system is only one institution of many, and it can’t be fully separated from the broader ecosystem of cultural and political pathologies that brought the country to this situation in the first place.

    After Robert Mueller chose not to press for an indictment of Trump on obstruction charges, because of Justice Department guidance on presidential immunity, the liberal and center-right commentariat soured on the special counsel, declaring him to have failed. If some Americans now expect Fani Willis or Jack Smith to disappear the problem of Donald Trump—and the authoritarian movement he leads—they will very likely be disappointed once again. Which wouldn’t matter so much if serial disappointment in legal institutions—he just keeps getting away with it—didn’t encourage despair, cynicism, and nihilism. These are exactly the sentiments that autocrats hope to engender. They would be particularly dangerous attitudes during a second Trump term, when public outrage will be needed to galvanize civil servants to resist abuses of power—and they must be resisted.

    Trump’s trials are perhaps best seen as one part of a much larger legal landscape. The Justice Department’s prosecutions of rioters who attacked the Capitol on January 6 seem to have held extremist groups back from attempting other riots or acts of mass intimidation, even though Trump has called for protests as his indictments have rained down. Michigan Attorney General Dana Nessel recently announced criminal charges alleging that more than a dozen Republicans acted as “fake electors” in an effort to steal the 2020 election for Trump—and as a result, would-be accomplices in Trump’s further plots may be less inclined to risk their own freedom to help the candidate out. Likewise, some of those lawyers who worked to overturn the 2020 vote have now been indicted in Georgia and face potential disbarment—which could cause other attorneys to hold back from future schemes.

    Alan Z. Rozenshtein: The First Amendment is no defense for Trump’s alleged crimes

    This is a vision of accountability as deterrence, achieved piece by piece. Even if Trump wins a second term, these efforts will complicate his drive for absolute authority. And no matter the political fallout, the criminal prosecutions of Trump are themselves inherently valuable. When Trump’s opponents declare that “no one is above the law,” they’re asserting a bedrock principle of American society, and the very act of doing so helps keep that principle alive.

    None of this settles what may happen on Election Day, of course, or in the days that follow. But nor would a conviction. If a majority of voters in a handful of swing states decide they want to elect a president convicted of serious state and federal crimes, the courts can’t prevent them from doing so.

    Such a result would lead to perhaps the most exaggerated disjunction yet between American law and politics: the matter of what to do with a felonious chief executive. If federal charges are the problem, Trump seems certain to try to grant himself a pardon—a move that would raise constitutional questions left unsettled since Watergate. In the case of state-level conviction, though, President Trump would have no such power. Could it be that he might end up serving his second term from a Georgia prison?

    The question isn’t absurd, and yet there’s no obvious answer to how that would work in practice. The best way of dealing with such a problem is as maddeningly, impossibly straightforward as it always has been: Don’t elect this man in the first place.

    This article appears in the October 2023 print edition with the headline “Trump on Trial.” When you buy a book using a link on this page, we receive a commission. Thank you for supporting The Atlantic.

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    Quinta Jurecic

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  • The Impossible Task of Muzzling Donald Trump

    The Impossible Task of Muzzling Donald Trump

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    When Donald Trump appeared last week in a Washington, D.C., courtroom for his arraignment on federal election charges, the presiding judge gave the former president a few simple instructions for staying out of jail while he awaited trial.

    Trump could not talk to potential witnesses about the case except through lawyers, Magistrate Judge Moxila Upadhyaya told him, and he could not commit a crime on the local, state, or federal level. Both are standard directives to defendants. But then Upadhyaya added a warning that seemed tailored a bit more specifically to the blustery politician standing before her: “I want to remind you,” the judge said, “it is a crime to intimidate a witness or retaliate against anyone for providing information about your case to the prosecution, or otherwise obstruct justice.”

    When Upadhyaya asked Trump if he understood, he nodded. Fewer than 24 hours later, Trump appeared to flout that very warning—in its spirit if not its letter—by threatening his would-be foes in an all-caps post on Truth Social: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Over the following week, he attacked a potential witness in the case, former Vice President Mike Pence (“delusional”); Special Counsel Jack Smith (“deranged”); and the federal judge assigned to oversee his case, Tanya Chutkan, an appointee of former President Barack Obama (Smith’s “number one draft pick,” in Trump’s words).

    Trump’s screeds highlight a challenge that will now fall to Chutkan to confront: constraining a defendant who’s both a former president and a leading candidate to take the White House—and who seems bent on making a mockery of his legal process.

    “She’s in a tight spot,” Barbara McQuade, a former U.S. attorney in Michigan, says of Chutkan. Conceivably, the judge could find Trump in contempt of court and toss him in jail for violating the terms of his pretrial release. But even though in theory Trump should be treated like any other defendant, former prosecutors told me that he was exceedingly unlikely to go to prison over his pretrial statements. And Trump probably knows it. (Whether Trump will go to prison if he is convicted is another hotly debated matter.)

    Read: The humiliation of Donald Trump

    “I’m sure she would be very reluctant to do that, in light of the fact that he’s running for president,” McQuade told me. “So I think as a result, he has a very long leash, and I think he will simply dare her to revoke [his freedom] by saying the most outrageous things he can.”

    At a pretrial hearing today, Chutkan issued her first warnings to Trump’s lawyers about their client, according to reporting by Steven Portnoy of ABC News and Kyle Cheney of Politico. “Mr. Trump, like every American, has a First Amendment right to free speech,” she said. “But that right is not absolute.” She said Trump’s presidential candidacy would not factor into her decisions, and she rebuffed suggestions by a Trump lawyer, John Lauro, that the former president had a right to respond to his political opponents in the heat of a campaign. “He’s a criminal defendant,” she reminded him. “He’s going to have restrictions like every single other defendant.”

    Chutkan said she would be scrutinizing Trump’s words carefully, and she concluded with what she called “a general word of caution”: “Even arguably ambiguous statements from parties or their counsel,” the judge said, “can threaten the process.” She added: “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”

    Chutkan had called the hearing to determine whether to bar Trump and his lawyers from publicly disclosing evidence provided to them by prosecutors—a standard part of the pretrial process. The evidence includes millions of pages of documents and transcribed witness interviews from a year-long investigation, and the government argued that Trump or his lawyers could undermine the process by making them public before the trial. Despite her warnings to Trump’s team, she sided with the defense’s request to narrow the restrictions on what they could disclose, and she did not add other constraints on what he could say about the case.

    Yet the effect of Chutkan’s courtroom comments was to put Trump on notice. If he continues to flout judicial warnings, she could place a more formal gag order on him, the ex-prosecutors said. And if he ignores that directive, she would likely issue additional warnings before considering a criminal-contempt citation. A further escalation, McQuade said, would be to hold a hearing and order Trump to show cause for why he should not be held in contempt. “Maybe she gives him a warning, and she gives him another chance and another chance, but eventually, her biggest hammer” is to send him to jail.

    Judges have sanctioned high-profile defendants in other cases recently. In 2019, the Trump ally Roger Stone was barred from posting on major social-media platforms after Judge Amy Berman Jackson ruled that he had violated a gag order she had issued. (Stone did honor this directive.) The Trump foe Michael Avenatti, who represented Stormy Daniels in her case against Trump and briefly considered challenging him for the presidency, was jailed shortly before his trial on extortion charges after prosecutors accused him of disregarding financial terms of his bail. “He was just scooped up and thrown into solitary,” one of his former lawyers, E. Danya Perry, told me. She said that Avenatti was thrown into the same jail cell that had held El Chapo, the Mexican drug lord. (Avenatti later claimed that his treatment was payback ordered by then–Attorney General Bill Barr; the prison warden said he was placed in solitary confinement because of “serious concerns” about his safety, and Barr has called Avenatti’s accusation “ridiculous.”)

    Neither Stone nor Avenatti, however, is as high-profile as Trump, arguably the most famous federal defendant in American history. And Perry doubts that Chutkan would imprison him before a trial. Trump has ignored warnings from judges overseeing the various civil cases brought against him over the years and has never faced tangible consequences. “He has done it so many times and he has managed to skate so many times that he certainly is emboldened,” Perry said.

    Indeed, Trump has also suggested he would ignore a gag order from Chutkan. “I will talk about it. I will. They’re not taking away my First Amendment rights,” Trump told a campaign rally in New Hampshire on Wednesday.

    Trump’s political motives for vilifying his prosecutors and once again portraying himself as the victim of a witch hunt are obvious: He’s trying to rile up his Republican base. Trump also seems to be executing something of a legal strategy in his public statements about the trial. He’s called Washington, D.C., “a filthy and crime-ridden embarrassment,” possibly reasoning that these remarks will force the court to agree to his request to shift the trial to a venue with a friendlier population of potential jurors, such as West Virginia.

    David A. Graham: Trump is acting like he’s cornered

    That’s less likely to work, according to the former prosecutors I interviewed. “I’d be shocked to see that be successful,” Noah Bookbinder, a former federal prosecutor who heads the anti-corruption advocacy group Citizens for Responsibility and Ethics in Washington, told me. “It’s sort of like the old joke about the child who kills his mother and father and then asks for mercy because he’s an orphan. I just don’t see a court going for that.”

    Trump’s attacks also present a problem for Smith, the special counsel. On one hand, prosecutors have a clear interest in ensuring that their witnesses do not feel intimidated; on the other, Smith could feel that trying to silence Trump would play into the former president’s victim narrative. Justice Department prosecutors alerted Chutkan to Trump’s “I’m coming after you” post in a court filing, and during today’s hearing they voiced concerns that if not restricted, Trump could disclose evidence to benefit his campaign. (A Trump spokesperson said the former president’s warning was “the definition of political speech,” and that it referred to “special interest groups and Super PACs” opposing his candidacy.) But Smith’s team did not ask Chutkan to fully gag Trump or even admonish him. “You see the prosecutors being very, very restrained,” Bookbinder said. “With a lot of defendants who were bad-mouthing the prosecutor and witnesses, they would have immediately gone in and asked for an order for the defendant to stop doing that.”

    Bookbinder described the citation of Trump’s post as “a brushback pitch” by the government, a signal that they are watching the former president’s public statements closely. But like Chutkan, Smith might be reluctant to push the matter very far. Fighting with Trump over a gag order could distract from where the government wants to focus the case—on Trump’s alleged crimes—and it could indulge his desire to drag out the trial, Bookbinder noted. But the special counsel has to weigh those concerns against the possibility that an out-of-control defendant could jeopardize the safety of prosecutors and witnesses. “My strong suspicion is that Jack Smith doesn’t want to go there,” Bookbinder said. “I think at some point he may have little choice.”

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    Russell Berman

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