Chutkan, Tanya S

Subterms

    More stories

    • 100 Shares149 Views

      in Elections

      The Supreme Court Can Stop Trump’s Delay Game

      by

      This is a good week to remember that, in the hours after Senate Republicans refused to convict Donald Trump for inciting the Jan. 6 Capitol attack, Mitch McConnell, then the majority leader, offered a hint of future comeuppance for the former president. Mr. Trump, he said, was still liable for everything he did as president.“He didn’t get away with anything yet — yet,” Mr. McConnell said on the Senate floor on Feb. 13, 2021. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”Almost three years later, we are approaching the moment of truth. Mr. Trump, under federal indictment for his role in the insurrection, is attempting to evade legal accountability as he always has, by delay and misdirection.On Monday night, the case reached the Supreme Court, where litigation is normally measured in months, if not years. That’s understandable, especially when legal issues are complex or involve matters of great public significance. The course of justice is slow and steady, as the tortoise sculptures scattered around the court’s building at One First Street symbolize.But sometimes time is of the essence. That’s the case now, as the court weighs whether to expedite the case against Mr. Trump, who is trying to get his criminal charges thrown out a few weeks before the Republican primaries begin, and less than a year before the 2024 election.Last week after the federal trial judge, Tanya Chutkan, rejected Mr. Trump’s legal arguments that he is immune from prosecution, he appealed to the federal appeals court in Washington, a process that he clearly hoped would add weeks of delay. The special counsel Jack Smith countered by going directly to the Supreme Court, asking the justices to take the case away from the appeals court and rule quickly.It was, he acknowledged, “an extraordinary request” for “an extraordinary case.” The justices took the hint, ordering Mr. Trump to file his response by next week — lightning speed compared to the court’s usual pace.The prosecution was further complicated on Wednesday, when the justices agreed to hear a case challenging the government’s reliance on a particular obstruction charge against hundreds of Jan. 6 attackers, and against Mr. Trump himself.Prosecuting a presidential candidate during a campaign is not an ideal situation. Still, the justices were right not to sit on Mr. Smith’s appeal. The American people deserve to know, well before they head to the polls, whether one of the two probable major-party candidates for president is a convicted criminal — whether he is guilty, no less, of conspiring to subvert the outcome of a free and fair election to keep himself in power. The Jan. 6 trial — one of four Mr. Trump is expected to face over the coming months, and arguably the most consequential of all — is scheduled to start in early March, and it cannot move forward until the court decides whether he as a former president is immune from prosecution for his actions in office.The good news is there’s nothing stopping them. The justices are fully capable of acting fast when the circumstances demand. Consider the 2000 presidential election: the dispute over Florida’s vote count rocketed up to the court not once but twice in a matter of days in early December. The court issued its final opinion in Bush v. Gore, which was 61 pages in all, including dissents, barely 24 hours after hearing oral arguments.In 1974, the court managed to decide another hugely consequential case involving the presidency — Richard Nixon’s refusal to turn over his secret Oval Office tapes — over the course of a few weeks in June and July. The court’s ruling, which came out during its summer recess, went against Mr. Nixon and led to his resignation shortly after.The stakes in both cases were extraordinary, effectively deciding who would (or would not) be president. In both cases, the justices knew the country was waiting on them, and they showed they have no trouble resolving a legal dispute rapidly. The Jan. 6 charges against Mr. Trump are similarly consequential. Never in American history has a sitting president interfered with the peaceful transfer of power. No matter their positions on Mr. Trump and his eligibility to run again, all Americans have a compelling interest in getting a verdict in this case before the election.For that to happen, the Supreme Court needs to rule on Mr. Trump’s claim of executive immunity, one of a narrow category of appeals that can stop a trial in its tracks rather than having to wait until after conviction to be filed. The former president’s argument is that his actions to overturn the election were taken in the course of his official duties, and thus that he is absolutely immune from prosecution for them. It’s an absurd claim, as Judge Chutkan explained in denying it on Dec. 1.“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”Mr. Trump made two additional arguments, involving double jeopardy and the First Amendment, that were even weaker than the immunity claim, and Judge Chutkan denied those as well. She was probably tempted to toss out all of them as frivolous, as so many of Mr. Trump’s delaying tactics, dressed up as legal arguments, turn out to be. Instead she erred on the side of caution because no one has ever made such arguments, so there is no legal precedent for assessing their validity.Of course, the reason no one has made these arguments is that no former president has been criminally charged before. This is classic Trump, freeloading on everyone else’s respect for the law. You can drive 100 m.p.h. down the highway only if you are confident the other cars will stay in their lanes.The irony is that, even as he seeks to delay and obstruct the justice system, Mr. Trump is bolstering the case for a speedy trial thanks to his repeated threatening outbursts on social media. He has attacked the judge, the prosecutor and others, including those who are likely to testify against him. Statements like those endanger the safety of witnesses and the basic fairness of the trial, and have resulted in a gag order against the former president, but they are routine for a man who has spent a lifetime acting out and daring decent Americans everywhere to do something, anything, to stop him.“He keeps challenging the system to hold him accountable,” Kristy Parker of Protect Democracy, a nonpartisan advocacy group, told me. Most any other defendant who behaved in this way would risk being thrown in jail for violating the conditions of their bail, she said, but “no one wants to see him locked up prior to trial. It’s not going to be good for American society.”She was referring to the propensity for threats and violence that Mr. Trump’s supporters, egged on by their overlord, have shown in the face of any attempt to hold him to account. At this point, however, many Americans have accepted that risk as part of the price of cleansing the nation of a uniquely malicious political figure. We know the violence is coming, just as we know Mr. Trump will claim that any election he doesn’t win is rigged against him.“The best way to do anything about this is to have the trial soon,” Ms. Parker said. Right now, there are nine people in America who can help guarantee that is what happens.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

    • 125 Shares189 Views

      in Elections

      Judge Pauses Trump Election Case Amid Appeal of Immunity Issue

      by

      The decision by the judge to freeze the case came as the former president’s lawyers asked an appeals court to move slowly in considering his claims that he is immune from prosecution.A federal judge on Wednesday put on hold all of the proceedings in former President Donald J. Trump’s trial on charges of plotting to overturn the 2020 election as his lawyers asked an appeals court to move slowly in considering his claim that he is immune from prosecution in the case.The separate but related moves were part of an ongoing struggle between Mr. Trump’s legal team and prosecutors working for the special counsel, Jack Smith, over the critical question of when the trial will actually be held. It is now scheduled to begin in Washington in March.On Wednesday morning, Mr. Trump’s lawyers asked the federal appeals court to avoid setting an expedited schedule as it considered whether to dismiss the election subversion charges based on the former president’s sweeping claims of executive immunity.In a 16-page filing that blended legal and political arguments, the lawyers asked a three-judge panel of the court not to move too quickly in mulling the question of immunity, saying that a “reckless rush to judgment” would “irreparably undermine public confidence in the judicial system.”“The manifest public interest lies in the court’s careful and deliberate consideration of these momentous issues with the utmost care and diligence,” wrote D. John Sauer, a lawyer who is handling the appeal for Mr. Trump.On Wednesday afternoon, the trial judge overseeing the election case, Tanya S. Chutkan, handed Mr. Trump a victory by suspending all “further proceedings that would move this case towards trial” until the appeal of the immunity issue is resolved.Mr. Trump’s lawyers had requested the pause when they first decided to challenge Judge Chutkan’s rejection of the former president’s immunity claim. Mr. Trump had argued in his initial motion to dismiss the case that he was “absolutely immune” to the election interference charges because they were based on actions he took while he was in office.The former president’s filing to the U.S. Court of Appeals for the District of Columbia Circuit came two days after prosecutors working for Mr. Smith asked the same judges to fast-track the appeal. The prosecutors argued that keeping the underlying case moving forward would vindicate the public’s interest in a speedy trial.Mr. Smith has also filed a parallel request to the Supreme Court, asking the justices to consider the immunity issue even before the appeals court does and to issue their decision quickly. Mr. Trump’s lawyers have until Dec. 20 to respond to that request.In another move on Wednesday, the Supreme Court agreed to hear a separate case with a bearing on Mr. Trump’s prosecution. The court said it would consider whether the former president and hundreds of people who have been prosecuted for the Jan. 6, 2021, assault on the Capitol can be charged in those cases under a federal law that makes it a crime to corruptly obstruct or impede an official proceeding.Winning the appeal of the immunity issue has been only one of Mr. Trump’s goals. All along, he and his lawyers have had an alternate strategy: to delay the trial on election interference charges for as long as possible.If Mr. Trump is able to postpone the trial until after next year’s election and ultimately wins the race, he will have the power to simply order the charges to be dropped. Holding a trial after the race would also mean that voters would not have had a chance to hear any of the evidence that prosecutors collected about Mr. Trump’s expansive efforts to reverse the results of the previous election.Mr. Smith’s team has never explicitly suggested that they are worried that if Mr. Trump is re-elected he will use his political victory as a means to quash his legal problems. Instead, they have framed their concerns about the scheduling of the case in a different way, saying they are seeking to protect the enormous public interest in seeing the case resolved in a timely fashion.Mr. Sauer rejected that position in his filing to the appeals court, accusing Mr. Smith of using the case to damage Mr. Trump’s candidacy.“The date of March 4, 2024, has no talismanic significance,” he wrote. “Aside from the prosecution’s unlawful partisan motives, there is no compelling reason that date must be maintained.”Mr. Trump’s lawyers have long complained that the trial is itself a form of election interference. They say that the scheduled start date of March 4 is just one day before Super Tuesday, the most important date in the primary election season.Mr. Trump’s legal team has used its immunity appeal to launch political attacks against Mr. Smith and the Biden administration and cast the indictment as a partisan effort to derail Mr. Trump’s third bid for the White House.“The prosecution has one goal in this case: to unlawfully attempt to try, convict and sentence President Trump before an election in which he is likely to defeat President Biden,” Mr. Sauer wrote. In his appellate papers, Mr. Sauer also complained that the sped-up schedule Mr. Smith has asked for would require Mr. Trump’s legal team to “work round-the-clock through the holidays.” “It is as if the special counsel growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming,’” Mr. Sauer wrote, quoting the famous Dr. Seuss book.In a sign of how just how fast they would like to move, prosecutors responded to Mr. Sauer’s filing within a matter of hours.“The public’s need for a speedy resolution of these important legal issues,” they wrote, “take precedence over personal scheduling issues.” More

    • 163 Shares109 Views

      in Elections

      Why Jack Smith Is Taking Trump’s Immunity Claim Straight to the Supreme Court

      by

      The special counsel has substantive and procedural reasons for wanting a quick ruling on whether Donald Trump can be prosecuted for his actions as president.Jack Smith, the special counsel who has brought two cases against former President Donald J. Trump, made a bold move this week designed to undercut one of Mr. Trump’s chief defenses against accusations of plotting to overturn the 2020 election.Mr. Smith asked the Supreme Court to rule on Mr. Trump’s attempts to have the election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has the chance to consider the issue.Mr. Smith also asked the justices to make their decision quickly.“The United States recognizes that this is an extraordinary request,” he told the Supreme Court in a petition filed on Monday.But there was a reason it was needed.“This is an extraordinary case,” he wrote.Here is a look at the intersecting legal and political issues surrounding the special counsel’s move.What does Mr. Smith want the Supreme Court to do?He made two separate requests.First, he asked the justices to consider a legal issue they have never looked at before: whether the Constitution confers absolute immunity on a former president against a federal prosecution for crimes he committed while in office.Mr. Trump put that argument at the center of his initial motion to dismiss the election case, which he filed in October in Federal District Court in Washington. He contended that because the charges were based on official actions he took while in the White House, the indictment in its entirety had to be thrown out.Judge Tanya S. Chutkan, who is handling the case, disagreed and rejected the motion two weeks ago. Mr. Trump’s lawyers challenged her decision in the normal way in front of a federal appeals court in Washington and also asked her to freeze the case while the appeal was being heard.Mr. Smith asked the Supreme Court to step in front of an appeals court to rule on former President Donald J. Trump’s claims of immunity.Haiyun Jiang for The New York TimesWhile the lawyers obviously hoped to win the appeal, they also had another goal: to drag out the process for as long as possible and postpone a trial on the election interference charges.It was that delay strategy that appeared to underlie Mr. Smith’s second request to the Supreme Court. He asked the justices not only to rule on the immunity issue before the lower appeals court did, but also to do so on an expedited basis.Mr. Smith told the justices that an ordinary, even a relatively fast, appeal could take too much time. And he expressed concern in particular about keeping the trial, now set to go before a jury on March 4, more or less on schedule.What could happen if the trial is delayed?It depends on whom you ask and how long the trial is postponed.A significant delay could push the trial into summer or fall — the heart of the 2024 campaign season. That could cause problems for Mr. Trump because he would be obliged to attend the trial in Washington every weekday for two or three months when he could be holding rallies or meeting voters.Mr. Trump would likely respond to such a situation by bringing his campaign to the steps of the federal courthouse. He would almost certainly hold daily news conferences in front of the television cameras that would await his exit from the courtroom and use them to deliver his political talking points and attack the legal proceeding. He has employed a similar strategy during the civil fraud trial in New York in which he is accused of inflating his company’s net worth.There could also be serious consequences, however, if the trial is pushed off until after the election.If that happens and Mr. Trump wins the race, he would suddenly have the power to order the charges to be dropped. Moreover, millions of voters would never get to hear the evidence that Mr. Smith’s team collected about Mr. Trump’s efforts to subvert the last election before making a decision about whether to elect him again.What do we know about whether the Supreme Court will take the case on an expedited basis?It would require only four of the nine justices to come together for Mr. Smith’s request to be granted. Shortly after Mr. Smith filed his petition, the court issued an order telling Mr. Trump’s legal team to respond with their opinions on the issue by Dec. 20. While the schedule the justices set gave no indication of whether they might ultimately take the case, it did seem to suggest that the court was not inclined to drag its feet in reaching a decision.A significant delay in the case could plunge the trial into the heart of Mr. Trump’s 2024 campaign.Hilary Swift for The New York TimesHistorically speaking, the Supreme Court has only rarely stepped in front of lower appeals courts by using the procedure known as “certiorari before judgment.” Before 2019, the court had not used the provision for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas. But as of late last year, the court had used it 19 times since.The procedure has been used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor during a criminal investigation.Mr. Smith urged the court to use it in Mr. Trump’s criminal case as well, saying that the proceeding involved “issues of exceptional national importance.”How sympathetic has this Supreme Court been to Trump in such cases?While the court’s current majority has voted in favor of a number of staunchly conservative policies, from striking down abortion rights to reversing affirmative action, it has shown less of an appetite for supporting Mr. Trump’s attempts to monkey with the democratic process.Just months before Mr. Trump appointed his third Supreme Court justice, the court ruled by a 7-to-2 vote in 2020 that he had no absolute right to block the release of his financial records from investigators in a criminal inquiry.“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.That same year, in a brief unsigned order, the court rejected a lawsuit filed by the state of Texas seeking to throw out the election results in four battleground states that Mr. Trump had lost. It also declined requests to review suits filed by pro-Trump lawyers claiming that voting machines across the country had been hacked by a cabal of foreign actors to flip votes away from Mr. Trump.Last year, the Supreme Court refused a request from Mr. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting his claims of executive privilege.The court’s unsigned order upheld the original decision made in the case by none other than Judge Chutkan. And she had scathing words for Mr. Trump in her initial decision rejecting his claims of executive privilege.“Presidents are not kings,” she wrote, “and plaintiff is not president.”What could happen next?If the Supreme Court takes the case and agrees with Mr. Trump’s immunity claims, then the indictment would be tossed out and there would be no trial on the election interference charges. But if the court hears the case and quickly sides with Mr. Smith, a trial would be held, likely before the election.On the other hand, if the justices decline to hear the case at this stage, then it would go back to the U.S. Court of Appeals for the District of Columbia Circuit. But the Supreme Court could eventually come back into the picture and consider challenges to the decision of the appeals court. More

    • 138 Shares169 Views

      in Elections

      Prosecutors Ask Judge to Deny Trump’s Request to Freeze Election Case

      by

      The special counsel Jack Smith told the judge she should keep the trial’s start date in March and continue making decisions as the former president appeals one of her rulings.Federal prosecutors on Sunday asked the judge handling former President Donald J. Trump’s trial on charges of plotting to overturn the 2020 election to reject his request to freeze the case in its entirety as Mr. Trump appeals her recent ruling that he is not immune from prosecution.The prosecutors told the judge, Tanya S. Chutkan, that even as the former president’s appeal of the immunity decision moved forward, she should continue working on several of the unresolved legal issues in the case and not postpone the trial’s current start date of March 4.“During the pendency of the appeal, any number of matters could arise in this case that are not involved in the appeal,” wrote Molly Gaston, a top deputy to Jack Smith, the special counsel who is overseeing Mr. Trump’s federal prosecutions. “The court should not enter an order preventing it from handling them.”“For its part,” Ms. Gaston went on, “in light of the public’s strong interest in a prompt trial, the government will seek to ensure that trial proceeds as scheduled.”The three-page filing by Ms. Gaston came just days after Mr. Trump’s lawyers asked Judge Chutkan to pause all of the dates and deadlines associated with the proceeding until the appeal of her decision denying their immunity claims is resolved.The expansive stay Mr. Trump’s lawyers have asked for would in essence stop the case in its tracks. The appeal is the centerpiece of a long-planned strategy by the former president’s legal team to postpone the trial in Federal District Court in Washington until after the 2024 election.This month, Judge Chutkan turned down Mr. Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while he was in office.In her ruling, she condemned his attempts to “usurp the reins of government” and said there was nothing in the law, the Constitution or American history upholding the idea that a former president should not be bound by the federal penal code.Mr. Trump’s lawyers have already moved to challenge that decision in front of a federal appeals court in Washington and plan to keep appealing it all the way to the Supreme Court, if needed. But winning the argument is only one of their goals. They are also hoping to eat up time and postpone the case from going to trial for as long as they can.If the trial were to be put off until after the election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would never get to hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.Mr. Smith’s team has suggested in court papers that it knew Mr. Trump would seek to use the immunity appeal to delay the case. Last month, the prosecutors specifically asked Judge Chutkan to make her decision on the question quickly so that the appellate process could get underway.But in her filing on Sunday evening, Ms. Gaston suggested there was no reason Judge Chutkan could not make rulings on other outstanding issues in the case as the appeal went forward. Among those issues is an unresolved motion by Mr. Trump’s lawyers to have the election charges dismissed because they represent what they have described as a partisan attack against him by President Biden.While the defense and the prosecution have been sparring for months over the timing of the election interference trial, they have more recently been fighting over something else: a number of “speculative and conspiratorial” theories, as the government has called them, that Mr. Trump has indicated he may raise during the trial.On Saturday night, in a separate set of court papers, prosecutors pushed back against those theories, which could serve as the basis for one of Mr. Trump’s lines of defense at trial: suggesting, that in reassuring the public that the 2020 election was conducted fairly, the so-called deep state was in fact misleading the nation, an assertion that lacks any credible basis.In the papers filed on Saturday, Thomas P. Windom, another one of Mr. Smith’s top deputies, dismissed the notion — first brought up last month by Mr. Trump’s lawyers — that the SolarWinds computer hack engineered by Russia might have affected the results of the election.Mr. Windom also rejected as “bewildering” Mr. Trump’s claim that a statement issued by the country’s top cybersecurity official saying that the 2020 election had been safe was “part of a partisan effort to provide false assurances to the public.”Mr. Windom had little patience for yet another conspiratorial claim raised by Mr. Trump: that a cabal of politically motivated intelligence and national security officials had worked together after the election to convince him that no voting machines had been compromised and that the vote count had in fact been accurate.Calling the idea “theatrical,” Mr. Windom said prosecutors never found a shred of evidence during their long investigation that “a domestic or foreign actor flipped a single vote in a voting machine.”He also revealed how deeply the inquiry delved into the country’s national security community, noting that investigators interviewed the former director of national intelligence, the former national security adviser and his deputy, the former secretary of defense and the former leadership of the Justice Department. Asked if they were aware of any evidence of meddling in the election results, “the answer from every single official was no,” Mr. Windom’s filing said. More

    • 150 Shares129 Views

      in Elections

      Appeals Court Upholds Trump Gag Order in Election Case, but Narrows Terms

      by

      The decision largely left in place an order limiting what the former president can say about his upcoming federal trial but allowed him more leeway to criticize Jack Smith, the special counsel.A federal appeals court on Friday upheld the gag order imposed two months ago on former President Donald J. Trump in the criminal case accusing him of plotting to overturn the 2020 election, but narrowed its terms to allow him to keep attacking one of his main targets: Jack Smith, the special counsel overseeing his federal prosecutions.The fight over the gag order has pitted the First Amendment rights of a presidential candidate against fears that his vitriolic language could spur his supporters to violence against participants in the case. While the U.S. Court of Appeals for the District of Columbia Circuit agreed that a gag order was justified, its adjustments gave Mr. Trump broader latitude to lash out at some of the people he has been targeting for months.In its ruling, a three-judge panel sought to strike a cautious balance between what it called “two foundational constitutional values”: the integrity of the judicial system and Mr. Trump’s right to speak his mind.To that end, the panel kept in place the gag order’s original measures restricting Mr. Trump from attacking any members of Mr. Smith’s staff or the court staff involved in the case. It also preserved provisions that allowed Mr. Trump to portray the prosecution as a political vendetta and to directly criticize the Biden administration and the Justice Department.And in one respect, the court expanded the restrictions, adding a measure barring Mr. Trump from commenting on the relatives of lawyers or court staff members involved in the case if the remarks were intended to interfere with how the trial participants were doing their jobs.“We do not allow such an order lightly,” Judge Patricia A. Millett wrote for the panel. “Mr. Trump is a former president and current candidate for the presidency, and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.”But the court cut back on the gag order in two important ways. In addition to freeing Mr. Trump to go after Mr. Smith, the public face of the prosecution, it relaxed a flat restriction against targeting witnesses — allowing Mr. Trump to criticize them if his remarks were not connected to their roles in the case.After the trial judge, Tanya S. Chutkan, first imposed the gag order on Mr. Trump in Federal District Court in Washington in October, Mr. Trump appealed seeking to get it overturned entirely as unconstitutional. As it hinted it might do at oral arguments last month, the appellate panel instead kept a version in place, but modified some of its terms.The modifications to the order mean that Mr. Trump can now return to using some of his favorite social media epithets and refer to Mr. Smith, as he has numerous times, as a “thug” or as “deranged.” The alterations also mean that Mr. Trump can lash out in a limited way against those of his political adversaries who also may be witnesses in the election interference trial, including former Vice President Mike Pence and former Attorney General William P. Barr.Asked for comment, the Trump campaign issued a statement saying the appeals court had struck down “a huge part of Judge Chutkan’s extraordinarily overbroad gag order.” Mr. Trump’s lawyers have promised to challenge the gag order all the way to the Supreme Court.The appeals court’s ruling rejected many of Mr. Trump’s legal team’s arguments for lifting the gag order entirely, including that his remarks are all constitutionally protected as political speech, that he could not be held responsible for his listeners’ responses to his speech, and that the court could not proactively gag him before any harm was shown to have occurred.“Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings,” Judge Millett wrote. “That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses.”But the original order, she said, “sweeps in more protected speech than is necessary,” so the First Amendment required a narrower tailoring of the restriction.Judge Millett and her two colleagues on the panel of the U.S. Court of Appeals for the District of Columbia — Judges Cornelia Pillard and Brad Garcia — were appointed by Democratic presidents. Judge Chutkan was also put on the bench by a Democrat.While gag orders are not uncommon in criminal prosecutions, the order imposed in the election interference case has resulted in a momentous clash. Mr. Smith’s prosecutors have sought to protect themselves and their witnesses from Mr. Trump’s “near-daily” social media barrages, while the former president has argued that the government has tried to censor his “core political speech” as he mounts another bid for the White House.Mr. Trump has often blurred the lines between his criminal cases and his presidential campaign, using court appearances to deliver political talking points and employing public remarks to assail his prosecutions as a form of persecution.Complicating matters, several of his political adversaries, including Mr. Pence, are likely to be witnesses against him when the election subversion case goes to trial as early as March.The decision by the appeals court means that the two gag orders placed on Mr. Trump — one in the federal election case and the other in his civil fraud case in Manhattan — have now been reinstated after judges had temporarily paused them.Late last month, a state appeals court in New York put back in place a gag order barring Mr. Trump from attacking the court staff in his civil trial. More

    • 113 Shares99 Views

      in Elections

      Trump on Trial: The Looming Legal and Political Collision

      by

      The former president’s trial in one of his four criminal cases is scheduled for early March, putting his legal drama and the race for the White House on an unprecedented trajectory.In the next few months, as the weather warms in Washington, something remarkable could happen in the city’s federal courthouse: Donald J. Trump could become the first former president in U.S. history to sit through a trial as a criminal defendant.The trial, based on charges that Mr. Trump conspired to overturn the 2020 election, is scheduled to start in early March. And while the date could change, it is likely that a jury will sit in judgment of Mr. Trump before the 2024 election — perhaps even before the Republican Party meets in Milwaukee in July for its nominating convention.Mr. Trump is the front-runner for the Republican nomination and is facing 91 felony charges in four separate cases. Putting him on trial either before the convention or during the general election would potentially lead to a series of events that have never been seen before in the annals of American law and politics.It would almost certainly fuse Mr. Trump’s role as a criminal defendant with his role as a presidential candidate. It would transform the steps of the federal courthouse into a site for daily impromptu campaign rallies. And it would place the legal case and the race for the White House on a direct collision course, each one increasingly capable of shaping the other.Throughout it all, Mr. Trump would almost certainly seek to turn the ordinarily sober courtroom proceedings into fodder he could use to influence public opinion and gain any advantage he can in a presidential race unlike any other.“There is no useful precedent for this — legally, politically — in any dimension that you want to analyze it,” said Chuck Rosenberg, a former United States attorney and F.B.I. official. “The turbulence is particularly dangerous because if Mr. Trump is convicted, he has set the stage for a large portion of the population to reject the jury’s verdict. As part of that, it is also his call to arms, and so there are other dangers that attend to his rhetoric.”The expectations of how a Trump trial would unfold before the election are based on interviews with people close to the former president. Already, Mr. Trump has sought to capitalize on the New York attorney general’s fraud case against him and his company. In that case, now underway in a Manhattan courtroom, Mr. Trump has shown up when he didn’t have to and has addressed reporters repeatedly. At the Washington trial, there will surely be enormous security, not only because of Mr. Trump’s status as a former president, but also because the event could become a flashpoint for conflict. There has been no violence during Mr. Trump’s various arraignments, when law enforcement officials had feared the worst.Still, there are some variables at play that could push the trial in Washington until after the election.Mr. Trump’s lawyers are planning to appeal a decision last week by Judge Tanya S. Chutkan, who is presiding over the election case, to deny his sweeping claims that he enjoys absolute immunity from the indictment because it covers actions he took while he was president. That appeal, on a question that has never been fully tested, could end up in front of the Supreme Court, further delaying the case even if prosecutors ultimately win the argument on the merits.But despite such time-buying tactics, Mr. Trump’s legal team is cautiously preparing for a trial in the late spring or early summer. While the other three cases in which Mr. Trump is facing charges are much likelier to be pushed off until after Election Day, the former president’s team believes Judge Chutkan is intent on keeping the proceeding she is overseeing moving ahead.Mr. Trump has already turned his legal travails into a campaign message that doubles as a lucrative online fund-raising tool. But his attempts to reap political benefit from his prosecutions and to use his legal proceedings as a platform for his talking points about victimhood and grievance are likely to only intensify if he is actually on trial, in the nation’s capital, in the middle of the 2024 presidential cycle.Merchandise alluding to Mr. Trump’s criminal cases at a campaign event in Waterloo, Iowa, in October.Doug Mills/The New York TimesThere is no evidence that President Biden has meddled in any of the Trump prosecutions. Still, people close to Mr. Trump are planning to exploit the situation by falsely claiming to voters that Mr. Biden is a “socialist” leader directly seeking to imprison his political rival. One of those people, who was not authorized to speak publicly, suggested that this message could resonate especially powerfully with Hispanic voters, some of whom have family members who have suffered under dictatorial regimes in Latin America.When he is in Judge Chutkan’s courtroom, Mr. Trump is likely to be fairly well-behaved, constrained by his lawyers and by the federal rules of criminal procedure. He is unlikely to say much at all under Judge Chutkan’s supervision. And his silence inside the courtroom may feel all the quieter given the noise he is likely to make outside it in front of the television cameras that will surely await him every day.Even now, Mr. Trump has been engaging in a fusillade of daily attacks not only against the election case in Washington but also against his three other criminal cases — as well as his civil fraud trial in Manhattan.He has tried to blur all four cases together in the public’s mind as one giant “witch hunt,” yoking them to previous investigations into him. He has assailed the judges, prosecutors and witnesses involved in the cases, leveraging moments when gag orders against him have been temporarily lifted. He has also mounted a sustained publicity blitz, comparing himself to Nelson Mandela while portraying the indictments against him as retaliatory strikes by his political opponents, including Mr. Biden.This sort of spin and vitriol is only likely to increase when crowds of reporters await Mr. Trump’s exit from Judge Chutkan’s court each day.Mr. Trump’s allies expect he will hold news conferences outside the courthouse, seeking to maximize media coverage and hoping to have cameras capture his daily motorcade departures, likely to the airport to fly back to New York so he can sleep in his own bed.The trial and the enormous publicity that surrounds it could also offer Mr. Trump an unmatched opportunity to communicate to the American public without anyone providing an effective rebuttal.The gag order in Washington does not preclude Mr. Trump from attacking the trial in general, and federal prosecutors are barred by their code of ethics from speaking about a case that is in process. That means the former president, who has no compunction about lying, is likely to be the only person directly involved in the proceeding talking about it daily on television and social media.“The reality of the ethical laws as they pertain to prosecutors is that Trump is going to continue to have a pathway to rail against the indictment and trial for all the reasons that he’s done in the past and will do in the future, essentially unfiltered and unlimited — the prosecutors won’t,” said Cyrus R. Vance Jr., the former Manhattan district attorney whose office spent years investigating Mr. Trump’s finances and business dealings.“There’s a significant imbalance in the ability of prosecutors to comment in real time about the evidence and the case.”A coalition of news organizations has asked Judge Chutkan to televise the proceedings and Mr. Trump has joined in the request. But that is unlikely to happen given that federal rules prohibit news cameras from broadcasting from the courtroom. Prosecutors in the office of the special counsel, Jack Smith, have opposed the request, saying that the former president would turn the proceeding into a “media event” with a “carnival atmosphere.”Mr. Smith’s team is unlikely to react at all to Mr. Trump’s provocations — at least in public — instead focusing its energies on winning the case inside the courtroom, said Samuel Buell, a former federal prosecutor and law professor at Duke University.“There have always been circuslike cases and this could be the most circuslike case of them all,” Mr. Buell said. “But the strategy of the prosecutors in these cases is to not get distracted.”Mr. Buell suggested that the special counsel’s office might request special protections for members of the jury who will be under scrutiny in a way rarely seen in other criminal matters. He said prosecutors might ask for the jurors to be anonymous or to have federal marshals drive them to and from the courthouse every day.The selection of the jurors will be of paramount importance, with Mr. Trump’s best hopes of avoiding a conviction likely resting on a hung jury, according to former prosecutors and defense lawyers. Given the demographics of Washington, D.C., the jury pool is likely to be racially diverse, but it is unclear how politically diverse it will be.Should he be convicted, it is unclear how quickly Mr. Trump would be sentenced. He will most likely file appeals. And the details of any sentence — when he would be punished and whether he would be sent to prison or ordered to serve home confinement — would all carry enormous significance and are likely to be litigated intensely.Even though Mr. Trump will try to shape public narratives about the trial, wall-to-wall coverage about it may not be entirely to his benefit.The trial is expected to feature a parade of witnesses, including many of his own lawyers and advisers who will testify under oath that he had been told in no uncertain terms that he lost the 2020 election. It is also likely to focus heavily on the role he played in stirring up the violence at the Capitol on Jan. 6, 2021.But even if Mr. Trump dominates the discussion about the trial on the airwaves, the slow and steady accumulation of evidence presented in the courtroom could serve as a counterbalance.“At trial, the prosecutors will present witnesses,” Mr. Vance said. “It becomes more balanced, and more powerful, when the trial is ongoing.” More

    • 138 Shares139 Views

      in Elections

      Trump Seeks Freeze of Election Case as He Appeals Immunity Ruling

      by

      In an effort to delay the former president’s federal trial on charges of trying to overturn the election, his lawyers asked for a pause while they challenge the ruling that he is not immune from prosecution.Lawyers for former President Donald J. Trump asked a federal judge on Wednesday to put the proceedings on hold in the case charging him with seeking to overturn the 2020 election as they appeal her recent ruling that he is not immune from prosecution.The request to freeze the case as the appeal goes forward was part of a long-planned strategy to delay any trial on the election interference charges from starting on schedule, in March.Mr. Trump’s legal team is hoping that a protracted appeal of the immunity issue, potentially to the Supreme Court, could result in the trial being pushed off until after the 2024 election is decided. Barring that, his lawyers hope to postpone the trial at least until after the Republican Party holds its nominating convention in Milwaukee in July.The way in which appealing the judge’s ruling has become entangled with Mr. Trump’s political calendar is typical of the way he has handled all four of the criminal cases he is facing as he mounts his third bid for the White House. He and his aides have made no secret that they believe his best shot at disposing of the four indictments against him is to be re-elected.While Mr. Trump has sought to slow down all of his cases, he has pursued the strategy most vigorously in the election case in Federal District Court in Washington, if only because it is likely to be the first to go before a jury.In an 11-page filing, Todd Blanche, one of Mr. Trump’s lawyers, told Judge Tanya S. Chutkan, who is overseeing the case, that such a pause was “mandatory and automatic” now that Mr. Trump had served formal notice that he intends to challenge her ruling to the U.S. Court of Appeals for the District of Columbia.Mr. Blanche argued that Judge Chutkan no longer had control of the case and that jurisdiction over it had shifted to the appeals court. The expansive stay he requested would in essence stop the case in its tracks, pausing all of the deadlines that Judge Chutkan had already set for matters like pretrial motions, disclosures about defense trial strategies and jury selection.The appeal and the attempt to pause the case were triggered by a decision by Judge Chutkan late last week rejecting Mr. Trump’s sweeping claims that he could not be prosecuted on the election interference charges because they were based on actions he took while he was in the White House.In a ruling laying out a limited vision of presidential power, Judge Chutkan said that there was nothing in the law, the Constitution or American history suggesting the holder of the nation’s highest office was not bound by the federal penal code.“Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” she wrote.Most motions to dismiss an indictment cannot be challenged until after a defendant is convicted. But Mr. Trump was permitted to appeal Judge Chutkan’s decision on immunity because it hinged on the fundamental question of whether the charges should have been brought in the first place.“The Constitution protects presidents in their work to make sure laws are followed, especially as it relates to elections,” Steven Cheung, a spokesman for Mr. Trump’s campaign, said in a statement. “As made clear in our appeal today, President Trump has absolute immunity from prosecution and litigation for carrying out his sworn and solemn duties as president.”Mr. Trump’s attempts to delay the election case will now depend on how quickly the appeals court decides to hear his challenge. The court’s next steps will be to lay out a schedule for written briefs to be filed and set a time for oral arguments.Prosecutors in the office of the special counsel, Jack Smith, have made it clear in court papers that they were expecting Mr. Trump to mount an appeal on the immunity issue even before Judge Chutkan ruled against him. To keep things moving forward, they could ask the appeals court to decide the case on an expedited basis — but even that could take several weeks.If Mr. Trump loses his first bid to challenge the immunity ruling before a three-judge panel of the appeals court, he could try again in front of the entire court. His lawyers plan to continue their appeals all the way to the Supreme Court if they can, hoping that even if they lose, their efforts will eat up time.If Mr. Trump succeeds in pushing the trial until after the election and wins the race, he could have his attorney general simply toss the charges. But even if he manages only to delay the trial until the summer, it would still put Judge Chutkan in a tough position.She would then have to decide whether to hold the proceeding during the heart of the campaign season. Such a move would no doubt prompt furious outbursts from Mr. Trump, who would be obligated to be in the courtroom every day, not campaigning.Or she could defer to the political calendar and decide it was too fraught to put a presidential candidate on trial with the election looming. More

    • 163 Shares199 Views

      in Elections

      Trump Seeks to Use Trial to Challenge Findings That 2020 Election Was Fair

      by

      The former president’s lawyers in his federal trial on charges of trying to overturn the election are asking to collect a wide range of evidence — including on unrelated issues like Hunter Biden.Lawyers for former President Donald J. Trump said in court papers that they planned to question the findings of several government agencies that the 2020 election was conducted fairly as part of their efforts to defend Mr. Trump against federal charges that he sought to overturn the results of the race.The lawyers also suggested in the papers that they intended to raise a host of distractions as part of their defense, indicating that they want to drag unrelated matters like Hunter Biden’s criminal prosecution and the investigation into former Vice President Mike Pence’s handling of classified documents into the election interference case.The twin filings by Mr. Trump’s lawyers late on Monday were formal requests to the prosecution to provide them with reams of additional material that they believe can help them fight the conspiracy indictment accusing Mr. Trump of seeking to subvert the lawful transfer of presidential power three years ago and stay in office despite his loss to Joseph R. Biden Jr.Criminal defendants routinely make such requests in what are known as motions to compel discovery, but many of those made in Mr. Trump’s two filings were long-shot efforts that are likely to be rejected. Ultimately, Judge Tanya S. Chutkan, who is overseeing the election interference case, will have the power to decide which, if any, of the records Mr. Trump will get.But even if his lawyers get far less than what they asked for, the scope of their requests can be read as a kind of outline of how they plan to fight the case, which is set to go to trial in March in Federal District Court in Washington.At the heart of their strategy, the court papers say, is a plan to call into question findings made by the intelligence community, the F.B.I. and other federal agencies that the election was not marred by widespread fraud.The lawyers intend to argue that government reports upholding the integrity of the election were in fact a “partisan effort to provide false assurances to the public.” By questioning the consensus that the election was secure, the lawyers are hoping to show that Mr. Trump was acting in good faith when he spread lies that the vote count had been rigged — a move that could weaken the prosecution’s attempts to prove his criminal intent.To make that argument, Mr. Trump’s legal team has asked Judge Chutkan to force the special counsel, Jack Smith, who is prosecuting the federal cases against the former president, to give it any internal government records that cut against the dominant view that the election had been conducted fairly.Those requests were only some of the 59 separate demands for records made in more than 70 pages of court papers submitted by Mr. Trump’s legal team. Looking for anything that could help them prove the race was not secure, the lawyers made additional requests for information about how federal officials assessed cyberattacks around the time of the election and about attempts by foreign governments to interfere in it.Suggesting yet another defense strategy, the lawyers also asked for any records that could help them undermine Mr. Smith’s contention that Mr. Trump was responsible for the violence that erupted at the Capitol on Jan. 6, 2021. They specifically asked Judge Chutkan to allow them access to any information about security measures implemented at the Capitol before the attack and about the presence of federal agents or informants who were on the ground during the riot.Almost from the moment the election interference indictment was handed up in August, Mr. Trump’s lawyers have tried to paint the case as a direct attempt by Mr. Biden to sabotage the man who is likely to be his chief rival in the 2024 election. They have advanced that argument not only without any evidence, but also in spite of the fact that the charges were filed by Mr. Smith, an independent prosecutor.The lawyers have specifically accused Mr. Biden of seeking to have Mr. Trump indicted in retaliation for the investigation of Hunter Biden, who was indicted in September on federal gun charges in a separate prosecution. And the discovery filings on Monday suggested that Mr. Trump’s lawyers would like nothing better than to muddy the waters of the election interference case by introducing evidence at trial about Hunter Biden.To that end, the lawyers requested any information concerning “coordination” between the Justice Department and the Biden administration or Mr. Biden’s family.In another far-fetched request, the lawyers asked for any records concerning dealings that the Justice Department had with Mr. Pence, who was investigated earlier this year after he returned to federal officials several classified documents he had kept when he left office.In their filing, Mr. Trump’s lawyers suggested without citing any evidence that Mr. Pence, who is likely to be a key government witness at the election interference trial, had “an incentive to curry favor with authorities” because of the potential charges he faced in his classified documents inquiry.Judge Chutkan will not issue a ruling on Mr. Trump’s requests until after prosecutors working for Mr. Smith respond to them next month. And her eventual decree about discovery is only one of several important decisions she will have to make in coming days.She is poised to issue an order about Mr. Trump’s claims that he enjoyed “absolute immunity” from the election charges because the indictment arose from official actions he took while in the White House. She is also expected to decide whether to allow cameras into her courtroom and televise the trial. More