Replies to post #455324 on Tornado Alley (PROG)

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Judge Chutkan’s Impossible Choice

"Judge Points Finger at Trump In Blistering Order Denying Trump’s Demand To Keep Jury From Hearing About Jan. 6 Riot"

Which itself is only going to lead to more impossible choices.

By David A. Graham


Illustration by The Atlantic. Source: Eduardo Munoz / Reuters

October 16, 2023

Links

When Judge Tanya Chutkan of the federal district court for D.C. was assigned the trial of Donald Trump for his attempt to steal the election, according to the journalist Robert Draper, she asked a friend to pray for her. Chutkan’s decision today to impose a gag order on the former president, her most consequential pronouncement in the case so far, shows why she’ll need prayer, if not outright divine wisdom, to navigate the challenge before her. Chutkan faces a series of impossible choices.

Her first impossible choice: whether to impose any gag order at all. As she described it in court, the order she granted appears narrower than what prosecutors sought. It prohibits disparaging remarks only of witnesses, prosecutors, and court staff, but allows Trump to continue attacking the Justice Department, President Joe Biden, and others—including Chutkan herself—as long as his comments do not directly bear on the case.

Chutkan’s order followed a two-hour hearing in Washington, in which prosecutors argued that Trump’s comments would poison the chance for a fair trial, while the defense attorney John Lauro repeatedly—and to Chutkan’s dismay—called any restriction “censorship.” The judge probed both prosecutors and defense with piercing questions. She peppered Assistant U.S. Attorney Molly Gaston, representing Special Counsel Jack Smith’s team, with questions about their proposal, siding with Lauro’s contention that the government was asking for something too broad. But she reminded the defense, “Mr. Trump is facing criminal charges. He does not get to respond to every criticism of him if his response would affect potential witnesses. That’s the bottom line here."

The dilemma for Chutkan is that almost any course she chooses threatens rule of law. She can hardly allow Trump to do things that she believes could corrupt the proceedings or intimidate witnesses, as the government alleges he has done. That would either erode the court’s ability to police every defendant, or else it would suggest that Trump doesn’t have to follow the same rules as everyone else. Gaston framed the question for Chutkan just this way: “What Mr. Lauro is saying is the defendant is above the law and he is not subject to the rules like any other defendant is.”

Trump does have legitimate interests as a political candidate in being able to speak (mostly) freely, and federal courts appropriately show little interest in policing candidates’ comments on the stump. Yet even considering those needs, the judge was troubled by some of Trump’s remarks in recent weeks, including attacks on Smith’s wife and on a law clerk for New York State Supreme Court Justice Arthur Engoron, who is overseeing a civil fraud case against Trump. She also pointed to Trump’s suggestion last month that Mark Milley, the former chairman of the Joint Chief of Staff, should be executed for treason. This language “frankly risks a real possibility of violence,” she said, adding: “We are in here today because of the statements that he’s made … right up to last night. I’m not confident that without some kind of restriction we won’t be in here all the time.”

The parties might be in court all the time anyway. Anyone familiar with Trump knows that he has no respect for rules and restrictions. He is already bound by federal laws against intimidating witnesses, and Chutkan previously placed standard limitations on him, including communicating directly with known witnesses. Lauro stated in court that Trump had complied with these conditions. “What you have put in place is working,” he said. Chutkan replied, laughing: “I have to take issue with that.”

Lauro promised to appeal any gag order, and his remarks in the courtroom, as well as Trump’s recent public statements, previewed the backlash to come. The attorney argued that Trump’s First Amendment rights were being abridged. He also complained that the whole thing amounted to election interference by Biden’s Justice Department, and that a gag order could allow Biden to attack Trump without Trump being able to respond. (In reality, Biden has been conspicuously quiet on the criminal cases against Trump, for fear of being seen as interfering.)

“Joe Biden is not a party to this case. He’s not subject to conditions of release,” Chutkan replied—though her eventual order did make clear that Trump could criticize Biden. The Trump campaign quickly took the opportunity, saying in a statement that the decision “is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent.”

The judge was dismissive of these complaints. “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal-justice system and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases,” she said. On another occasion, she scolded Lauro, saying, “I do not need to hear any campaign rhetoric in my courtroom.”

But the campaign rhetoric is not meant for her—it’s meant to influence voters, and convince them that Trump is subject to political persecution. Now that she has placed new conditions on him, he’s certain to test the limitations. This leads to more impossible choices. First, she’ll have to rule on what falls afoul of the gag order and what doesn’t. Second, she’ll have to find ways to enforce any violations she does find. His campaign will be happy to portray any attempt to do so as more evidence of political persecution.

Lauro seemed to be almost daring her to do that. In one question, he tried again to argue that Trump’s unique status as a criminally charged presidential candidate should get him out of the usual rules, wondering what would happen if Trump blurted something out about a witness during a presidential debate (should be choose to actually participate in one, as he so far has not).

“Is your honor going to put President Trump in jail during the campaign?” Lauro asked. How could she dare to lock up a presidential frontrunner? And yet, if he thumbs his nose at the law, how can she not?

David A. Graham is a staff writer at The Atlantic.

https://www.theatlantic.com/ideas/archive/2023/10/judge-tanya-chutkan-imposes-gag-order-donald-trump/675654/

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Special Counsel Jack Smith Petitions the Supreme Court to rule on Trump’s Immunity Defense

"Judge Points Finger at Trump In Blistering Order Denying Trump’s Demand To Keep Jury From Hearing About Jan. 6 Riot"

h/t Zorax - https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173407318

Anna Hickey
Monday, December 11, 2023, 3:40 PM

Smith also filed a motion for expedited review in the D.C. Circuit to prevent delay of Trump’s Jan. 6 trial

Published by The Lawfare Institute
in Cooperation With Brookings

On Dec. 11, the government filed a petition for a writ of certiorari to the Supreme Court requesting the Court resolve the question of whether former president Donald Trump is immune from federal prosecution for crimes committed while in office. The Justice Department is seeking to bypass the U.S. Court of Appeals for the D.C. Circuit, filing the petition before that court has ruled. The government also filed a motion for expedited consideration of the petition by the Supreme Court and an “expedited merits briefing if the Court grants the petition.” Additionally, the Justice Department filed a motion to expedite Trump's appeal of Judge Chutkan’s ruling in the D.C. Circuit. On Dec. 1, Judge Chutkan rejected .. https://www.lawfaremedia.org/article/chutkan-denies-trump-s-motions-to-dismiss .. Trump’s motion to dismiss the federal election interference case against him on the grounds of presidential immunity. Trump filed an appeal .. https://www.lawfaremedia.org/article/docket-watch-trump-prosecuted-in-d.c .. of her ruling in the D.C. Circuit on Dec. 7.

The government argues that if the case were to proceed without the Supreme Court’s expedited review, “it is unclear whether [the Supreme Court] would be able to hear and resolve the threshold immunity issues during its current Term.” The Justice Department notes that the Supreme Court in 1974 granted the then-special prosecutor’s petition for certiorari before appellate judgment in one of the Watergate cases less than four months before the trial was set to begin after the district court overseeing the case had denied former President Richard Nixon’s motion to quash a government subpoena seeking recordings from the Oval Office. The Court’s resolution of this constitutional question preceding United States v. Nixon .. https://supreme.justia.com/cases/federal/us/418/683/ , according to the government, should guide the Court to similarly review and resolve Trump’s immunity appeal. Trump’s Jan. 6 trial is currently set to begin on Mar. 4, 2024.

In the government’s motion in the D.C. Circuit for expedited review, the Justice Department writes that if the Supreme Court does not grant the government’s petition for certiorari before the D.C. Circuit issues a decision, expedited review in the D.C. Circuit would leave the Supreme Court with sufficient time to resolve the case during its current term.

Read the petition for a writ of certiorari here .. https://s3.documentcloud.org/documents/24213180/20231211115417267_no-23-624-us-v-donald-j-trump-petition.pdf .. or below [or inside]:

Read the government’s motion for expedited consideration of the petition by the Supreme Court here .. https://www.documentcloud.org/documents/24213509-20231211121507484_no-23-624-motion-to-expedite?responsive=1&title=1 .. or below:

Read the motion for expedited review in the D.C. Court of Appeals here .. https://s3.documentcloud.org/documents/24213189/usa-motion-to-expedite.pdf .. or below:

Anna Hickey is the associate editor for communications of Lawfare. She holds a B.A. in interdisciplinary studies: communications, legal studies, economics, and government with a minor in international studies from American University.

https://www.lawfaremedia.org/article/special-counsel-jack-smith-petitions-the-supreme-court-to-rule-on-trumps-immunity-defense

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#SCOTUS has *granted* Jack Smith's motion to expedite the petition for certiorari before judgment

This makes me smile

#SCOTUS has *granted* Jack Smith’s motion to expedite the petition for certiorari before judgment—and has ordered former President Trump to respond to the petition by next Wednesday at 4 ET. pic.twitter.com/3ZZiV8ATaS

— Steve Vladeck (@steve_vladeck) December 11, 2023

https://www.democraticunderground.com/100218519140

One hour ago

Special counsel goes directly to Supreme Court to resolve whether Trump has immunity from prosecution

By Hannah Rabinowitz and Devan Cole, CNN
Updated 6:54 PM EST, Mon December 11, 2023

VIDEOs -

CNN — Special counsel Jack Smith on Monday asked the Supreme Court to decide whether Donald Trump has any immunity from criminal prosecution for alleged crimes he committed while in office – the first time that the high court will weigh in on the historic prosecution of the former president.

The extraordinary request is an attempt by Smith to keep the election subversion trial – currently scheduled for early March – on track. Smith is asking the Supreme Court to take the rare step of skipping a federal appeals court and quickly decide a fundamental issue of the case against Trump.

What to know about Trump’s decision to not testify again in New York civil fraud trial
https://edition.cnn.com/2023/12/10/politics/trump-not-testifying-new-york-civil-fraud-trial

Smith’s team has asked the court to review District Judge’s Tanya Chutkan ruling that as a former president, Trump is not immune from the election subversion prosecution case brought in Washington, DC. Lawyers for the former president have argued that Trump’s alleged actions over the 2020 election results were part of his official duties at the time and therefore he is protected by presidential immunity.

Prosecutors also asked the court to decide whether Trump is protected by double jeopardy. Defense lawyers have asserted that because Trump was acquitted by the Senate during his impeachment trial that he cannot be criminally tried for the same alleged actions.

Later Monday, the Supreme Court said it will expedite consideration of Smith’s petition to rule on the question of whether Trump deserves immunity. Trump has until December 20 to file a response.

Continued: https://edition.cnn.com/2023/12/11/politics/special-counsel-trump-jack-smith/index.html