Trump team files motion to strike the more flowery (read hyperbolic) language from Smith's indictment.

They're seeking to strike a few allegations in the indictment relating to events on January 6 as not relevant.

Its unlikely to succeed as a matter of practice. Striking allegations is "highly disfavored" in court terminology. The real action will be efforts to suppress/preclude particular pieces of evidence...they'll find the most traction on evidence of violent conduct at the Capitol.

TXAggie2011 said:

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They're seeking to strike a few allegations in the indictment relating to events on January 6 as not relevant.

Its unlikely to succeed as a matter of practice. Striking allegations is "highly disfavored" in court terminology. The real action will be efforts to suppress/preclude particular pieces of evidence...they'll find the most traction on evidence of violent conduct at the Capitol.

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I'm aware. Why I posted the Goveia discussion of the issues. With Chutkan, I would be shocked if she granted even one Trump motion in limine if we get to that point, that is.

Motion to Strike denied

https://www.courtlistener.com/docket/67656604/158/united-states-v-trump/

TXAggie2011 said:

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Motion to Strike denied

https://www.courtlistener.com/docket/67656604/158/united-states-v-trump/

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Gosh.

Everyone on here is surprised.

NO ONE saw this coming...

So letting the prosecution reference Jan 6, but not letting the defense subpoena the Jan 6 committee. That was news to me.

TANYA CHUTKAN, A TYRANT IN A JUDICIAL ROBE

Chutkan rules against Trump over and over again, despite the seriousness of his motions -- she has violated his 1st (gag rule), 5th (due process), and 6th (effective representation of counsel) amendment rights; she has said outrageous…

— Mark R. Levin (@marklevinshow) November 28, 2023

Jack Smith files his 404(b) Motion. Government is required to give a Defendant notice of evidence it intends to use "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"

JUST IN: Jack Smith is planning to introduce a range of evidence in Trump's trial that isn't directly part of the charges — including Trump's repeated efforts to cast doubt on the 2012 and 2016 election results. https://t.co/tYpobnV0Xd pic.twitter.com/KoBKUDnfrY

— Kyle Cheney (@kyledcheney) December 5, 2023

Lastly, Smith wants to show evidence of Trump's open embrace of some of the most violent Jan. 6 rioters — and his promise to consider pardoning many of those who breached the Capitol. https://t.co/tYpobnV0Xd pic.twitter.com/JFUD74bK6d

— Kyle Cheney (@kyledcheney) December 5, 2023

He even says Trump tried to start a riot in Michigan! I didn't see anything about causing the Great Chicago Fire, but its still early!

Another sign of a very weak case. Throw a bunch of s*** against the wall.

Saw the same thing in the Alex Murdaugh murder trial. There was little to no evidence Murdaugh murdered his wife and son so bring in all of his financial crimes to show he's a bad guy, a bad guy who did not murder his wife and son.

Obligatory this is all moot as Trump as POTUS enjoyed absolute immunity for actions taken that in his discretion related to his responsibilities as POTUS. The only method to challenge whether he acted within those responsibilities is the impeachment process.

Why people fail to understand this boggles the mind.

Laura Logan does a recap of her episodes about Jan 6th. About 27 minutes.
LINK

Gouveia goes through this latest filing.on the 404 stuff. He has technical difficulties for the first five minutes so advance past there.

Liz Cheney says she secretly listened in on Trump's call planning Jan 6th.

C) Both A and B

You should watch Gouveia's break down of the 404 stuff. It's insane what the government is arguing about how Trump making statements or tweeting about elections in 2012 and before 2016 show he was conspiring to block the certification on Jan 6th.

Of course this is Judge Chutkan, she'll allow all that crap in.

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This is mentioned to make it appear as if Trump had engineered a long-term plan to claim voter fraud if an election did not go his way, rather than a spontaneous reaction to the outcome of the 2020 race.
In the end, Smith's filing claims he will prove that Trump was a sort of evil genius who masterminded an entire plot to dispute the outcome if he lost an election, even going so far as to concoct a violent attack against the government.
Let's be blunt, shall we? If this is the best that Smith's team has, this case might not go well for them.

This "evidence" is rather shaky, at best and I haven't seen anything that would suggest that Trump inspired a bunch of people to riot at the U.S. Capitol. Sure, Trump uses strong language, but he is not the first or last politician to do so.

Moreover, the notion that a politician should be responsible for people taking it upon themselves to engage in violence could lead to a terribly dangerous place. Should the state prosecute Sen. Bernie Sanders (I-VT) because the man who tried to assassinate Republican politicians was allegedly inspired by his rhetoric?

Of course not.

Basically, this indictment boils down to arguing that because Trump disputed the election results and said some mean things about people, the state should prosecute him. If the court handles this fairly, it seems doubtful to me that the prosecution will be able to make these particular allegations stick.

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That's too optimistic to me. DC jury, horrible judge. It is a bunch BS that should not be allowed under the case law on 404 evidence but Chutkan does not care about procedure nor rules of evidence.

LINK

aggiehawg said:

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Laura Logan does a recap of her episodes about Jan 6th. About 27 minutes.
LINK

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This was a good listen though it just makes me angrier about the whole setup and how libs continue to try and act like it was an insurrection.

I say 'listen' as when I watch Lara Logan I always seem to be distracted by her 'appearance'.

Trump arguing on interlocutory appeal that his acquittal at impeachment trial invokes doctrine of double jeopardy.

Will blast through that scheduled March 4th trial date.

Stat Monitor Repairman said:

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Trump arguing on interlocutory appeal that his acquittal at impeachment trial invokes doctrine of double jeopardy.

Will blast through that scheduled March 4th trial date.

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Yuck. Were Trump still President, that might have some merit. As it is, I find it unpersuasive. Of course we are in unchartered waters here, so migh as well make the argument.

He's forcing the Judge to make a public determination as to whether the pending deadlines remain in force or not. Once that is done, he can seek an administrative stay of all such deadlines from the Appeals Court while the appeal is pending. Can't ask for that until the… https://t.co/IIDSJj1Gbp

— Shipwreckedcrew (@shipwreckedcrew) December 7, 2023

Immmunity means not just immunity from judgment, trial or punishment, but immunity from suit and the burdens that go with it.

thus, everything should be stayed pending appeal.

BMX Bandit said:

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Immmunity means not just immunity from judgment, trial or punishment, but immunity from suit and the burdens that go with it.

thus, everything should be stayed pending appeal.

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Government filed their response this afternoon in opposition to a full stay and Trump's argument that Chutkan no longer has any jurisdiction at all over the case.

I read the thrust of the government's stay argument as the court can still decide Trump's pending motions and the government will continue to meet its deadlines. In other words, these aren't litigation burdens on Trump.

Although the government doesn't get into it in their response, the caselaw is unambiguous that discovery can usually continue insofar as it relates to determining whether Trump has immunity. We'll see how the Circuit court addresses that.

This case will impact DJT’s DC case significantly. Two of the four counts in his indictment are under this section. https://t.co/dKX3Qyf5IX

— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) December 13, 2023

To be clearer:

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The Supreme Court on Wednesday agreed to hear an appeal brought by a man charged with offenses relating to the Jan. 6, 2021, assault on the U.S. Capitol in a case that could have a major impact on the criminal prosecution of former President Donald Trump.

The justices will hear a case brought by defendant Joseph Fischer, who is seeking to dismiss a charge accusing him of obstructing an official proceeding, namely the certification by Congress of President Joe Biden's election victory, which was disrupted by a mob of Trump supporters.

Two other Jan. 6 defendants, Edward Lang and Garret Miller, brought similar appeals, the outcome of which will be dictated by the Supreme Court's ruling in Fischer's case.

Fritz Ulrich, a federal public defender representing Fischer, said he was pleased that the court will clarify the scope of the law in question but had no further comment.

Trump has been charged with the same offense as well as others in his federal election interference case. The court's decision to take up the issue, as well as the timing of its ultimate ruling, could therefore affect his case.

It will take months for the justices to hear oral arguments and issue a ruling sometime during the court's current nine-month term, which ends in June.

Trump's lawyers could use the Supreme Court's involvement as one opportunity to delay his election interference trial, which is scheduled to start in March.

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In the Supreme Court case, the only provision of the federal criminal code at issue is 18 U.S.C. 1512(c)(2), which criminalizes any effort to "corruptly" obstruct, influence or impede any official proceeding. Conviction can result in a prison sentence of up to 20 years.

The provision was enacted in 2002 as part of the Sarbanes-Oxley Act, a bill passed in the aftermath of the Enron accounting scandal. As such, defendants say it was never intended to apply to an incident such as Jan. 6.

Trump's lawyers have already made that argument in asking for his indictment to be dismissed.
The application of the provision in Trump's case could also raise issues separate from those in the Supreme Court appeals, in part because Trump himself did not participate in the Capitol attack.

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LINK

The Court earlier had denied cert on these cases but then listed Fischer for reconsideration. By granting cert and the certain relevance to two of the four charges against Trump is highly significant.

Further, by hearing this case, argument can be made that the trial against Trump in DC be delayed while the Court considers Fischer. A new wrinkle and a big one.

More:

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The Justice Department, in its arguments against the plaintiff in this case, says that regardless of how the Supreme Court feels about taking up the case, it would be too premature to rule on it, given that the defendants have yet to be convicted in their cases, let alone gone to trial.

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"The government is prepared to proceed to trial and to prove beyond a reasonable doubt that petitioners corruptly obstructed, influenced, or impeded the joint session on January 6, or attempted to do so," Solicitor General Elizabeth Prelogar wrote. She also said that a subsequent appeals court ruling in a different Jan. 6 case, which prosecutors won, has clarified the meaning of "corruptly."

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To further complicate the matter, as noted above, over 300 individuals have been charged under the same statute, with several of those individuals having already been convicted of that charge or accepted plea agreements for lesser charges. With a hypothetical decision by the Court in the plaintiff's favor, that alone would have massive implications for those individuals.

Another argument being used in the defense of Trump and the hundreds of others charged with the same crime is that the DOJ is applying the charge too broadly, with prosecutors often relying on mere statements on social media, or that the certification/electoral count is merely a ceremonial or administrative event and not an official proceeding. A former Virginia police sergeant, Thomas Robertson, who was convicted of that charge, used that defense in his case, albeit unsuccessfully.

.that Congress' work on Jan. 6 was outside the fundamental scope of the law. "The electoral count is a ceremonial and administrative event that is not an 'official proceeding' contemplated in 1512; it is not an adjudicative proceeding involving witness testimony and evidence," his lawyer wrote.

Further, the courts' historical definition of "corruptly" requiring an individual intentionally breaking the law in an effort to "obstruct" something had been stretched in Robertson's case to encompass social media posts. Robertson generally objected to the ill-defined nature of the statute as well as DOJ's selective use of it.

"(Inconsistent) charging decisions, along with the inherently vague words in the statute … that is the basis for charging these defendants, all show that 18 U.S.C. 1512(c)(2) is unconstitutionally vague."

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LINK

I find it ironic that DOJ is asserting a position contrary to what Smith is saying in the petition for cert in the Trump case.

The Trump DC Case has just been stayed by the Judge due to the appeal of the immunity issue.

March trial date and all filing deadlines are all canceled pending the outcome of the appeal.

— Shipwreckedcrew (@shipwreckedcrew) December 13, 2023

She, IMO correctly, notes that she still has jurisdiction over some administrative things like the gag order & conditions of release, etc.

But all else - discovery, motions, trial - is stated until the appellate courts speak.

/2

— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) December 13, 2023

This ruling by Chutkan was inevitable. There was no way this case could have been tried in March.

Some very seasoned and smart attorneys on the liberal side of the spectrum allowed their personal and partisan desires to cloud objective judgments on "nuts and bolts" issues of federal criminal procedure.

They were Captain Ahab and having a trial in the spring of 2024 was their…

— Shipwreckedcrew (@shipwreckedcrew) December 13, 2023

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The decision by SCOTUS this morning to take up the challenge to Sec. 1512 -- with 2 of the 4 counts charged against Trump being connected to that charge -- was the final straw. There is no reason now for SCOTUS to expedite the appeal of the immunity issue. While the cases are different, both will have a huge impact on what happens with the DC case if/when it ever gets to trial. So SCOTUS can deal with both on parallel tracks with similar schedules.

Oral arguments at the end of April and decisions at the end of June is the most likely result.

THEN an entirely new scheduling order will be necessary in the case -- if there still is a case.

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As I said. Agreeing to hear the Fischer case changed the calculus on the immunity appeal.

I need to go read the petitions closely, although who has the time, but Professor Vladeck does bring up an interesting question

And for everyone yelling at me in the replies, I'm not being coy. I *don't know* why they'd take only Fischer and not the other two, but it suggests that *perhaps* this is not as major an intervention as it's being portrayed—and is about something narrower in just Fischer's case.

— Steve Vladeck (@steve_vladeck) December 13, 2023

aggiehawg said:

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This ruling by Chutkan was inevitable. There was no way this case could have been tried in March.

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To be clear, the order doesn't say it won't go forward in March. It makes the distinction that whether the March date is retained will be decided later. It probably won't, but it also still very well could depending on how quickly the appeal is taken up.

"the stayed deadlines and proceedings are "held in abeyance," Motion at 1, rather than permanently vacated. If jurisdiction is returned to this court, it willconsistent with its duty to ensure both a speedy trial and fairness for all partiesconsider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024."

aggiehawg said:

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Quote:

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The decision by SCOTUS this morning to take up the challenge to Sec. 1512 -- with 2 of the 4 counts charged against Trump being connected to that charge -- was the final straw. There is no reason now for SCOTUS to expedite the appeal of the immunity issue. While the cases are different, both will have a huge impact on what happens with the DC case if/when it ever gets to trial. So SCOTUS can deal with both on parallel tracks with similar schedules.

Oral arguments at the end of April and decisions at the end of June is the most likely result.

THEN an entirely new scheduling order will be necessary in the case -- if there still is a case.

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As I said. Agreeing to hear the Fischer case changed the calculus on the immunity appeal.

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After reminding myself of more of the in and outs of Fischer's appeal, the thrust of his appeal is he didn't do anything with regards to "evidence", or maybe more specifically, his actions didn't have enough of a nexus to documents. (There is also debate about the meaning of "corruptly" in the statute but SCOTUS didn't take the two cases that deal most directly with that.)

I imagine the government's position is Trump is categorically positioned differently than Fischer in that, at a minimum, the elector certificate scheme involves attempting to insert false documents into the proceeding to affect the proceeding. Indeed, I want to say they've said as much at one point or another.

In United States v Sutherland, for example, the defendant sent false loan documents to the US Attorneys office in hopes to get out of tax fraud charges. He was charged under the same statute for attempting to influence the case by sending in those false loan documents. SCOTUS declined certiorari on that one in 2019.

I'm not endorsing that position, just speculating.


Fischer's also that weird case where all 3 judges wrote their own opinion and don't agree on which one controls.