An explainer on what seems to be going on with the hearing yesterday, and the judge's decision not to hold Team Trump in contempt. 1. It seems clear that the DOJ has good info that not all docs have been returned.The reports of what was missing when the latest two were found
described for example docs w/ N Korea that don't seem to be the ones that turned up in the storage locker. 2. On the one hand, that is a completely intolerable and bizarre state of affairs. The absolute routine, whoever is being investigated, is DOJ serves a subpoena and
the person or the company's custodian of records turns the evidence over and certifies compliance. 3. Here recall that back in May Team Trump gathered together a woefully incomplete set of docs and then had low-woman-on-the-totem-pole Christina Bob, who had just arrived, sign
certificate of compliance that turned out to be flagrantly false. She now has her own criminal lawyer and is dealing with DOJ. Fortunately for her she did add something like based on what others told me. 4. Since then, nobody wants to step up to the custodian role, which would
put their own necks on the line. Understandable, since among other things they know they have an inveterate liar as a client and one whom they can't woodshed and say cut the crap to, as defense lawyers normally could do here. 5. This produces a crazy stalemate in which no lawyer
will act as custodian, even though typically custodians don't swear that everything has been produced but just that they've done a diligent search etc. 6. We shouldn't lose sight of the underlying cause, which is that the former President of the United States lies all the time.
7. So why not just subpoena Trump directly. I think it's because of 5th Am doctrine known as the "act of production" defense. Normally there's no defense to turning over documents in your possession that have inculpatory information about you; you're not being forced to testify
but just to produce docs. However, in rare instances in which the actual production would tend to incriminate you, you can assert 5th Am rights. 8. Given that the nature of the investigation is that Trump has taken and concealed docs illegally, it does seem to me that he has a
good act of production defense.
9.Thus the impasse: DOJ has strong suspicions not all the docs have been returned, and remember: that has independent national security implications, which is what triggered the August search in the first place.
10. But Team Trump refuses to designate a custodian or any person who will say under penalty of perjury that there's been compliance. You might have thought that would be a situation in which Howell would jump in and say cut this nonsense; somebody needs to certify compliance
or I'm going to hold you in contempt and start assessing fines. 11. But without someone to actually find fault with -- there's no legal requirement of having a custodian of docs--it's hard for her to do that. 12. it's possible to hold an organization or entity in contempt, but
not clear one is involved here and in any event they have to act through their officer. Back to the same problem. 13. What happens next? DOJ can try to jawbone Team Trump but it's hard to see they're gaining much ground, and at least as of now they don't have probable cause
to do their own searches, b/c the Constitution requires it to be specific to time and place and fresh evidence. So we have the outrageous situation where the former President has absconded with national security docs and is keeping them illegally and the gov. can't get them back
14 .However, assuming the stalemate remains, it's ultimately bad for Trump. That's because evid that he is STILL--after nearly 2 years and multiple rounds--not complying with the subpoena adds a whole new layer to the prospective charges and increases DOJ's resolve to bring them.
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Hello from courtroom 1530, where there is an extra element of electricity in the air with Michael Cohen's scheduled testimony this morning.
The prosecution has peppered its presentation with disparagements of Cohen from various witnesses, with the goal of lowering expectations
and having the jury already having absorbed them so they lose any shock value and they can hear his account with a relative open mind.
The first strategic question for the DA will be whether to "pull the sting" -- i.e start by fronting front the various issues of credibility
that the defense will hammer home again and again in their cross of Cohen, the centerpiece of the case, or whether instead to let him get into a sort of rhythm first by discussing basic bio and especially his close relationship with Trump pre-2017.
In handicapping terms, this is the equivalent of a rumor that the jockey may have the flu, in other words, gossamer-thin data that maybe changes the odds from even money to 36-35. But for those who like to play, here's a chain of speculation. For others, please don't
give me grief about how thin and speculative it is: that's exactly what is designed to be. OK-- 1. The court had all the necessary papers for the decision, whether to extend the immunity stay by last Thursday.
2. They had a conference last Friday, when they could have taken up the motion but apparently didn't. 3. Emergency motions, like trumps can be considered at a conference or the papers can be distributed to each chambers. In that event, each Justice votes, based on the papers,
We should keep in mind that the DC circuit and DC District Court are both very collegial. The judges of each talk a lot with one another (not,however, between courts). Moreover, each court has handled quite a number of 1/6 cases.
That means they are able to get a good sense from one another of what will fly and what is prudent. Contrast that with Judge Cannon, who is literally alone in her chambers, and who just yesterday turned down a reasonable request from Jack Smith
to require Trump to put up more information on his advice of counsel defense. It is looking increasingly likely that we should just scratch the Cannon case from the candidates for going forward before the election, which is a shame, and a very poor reflection on her.
ok sorry. and since you're @60andmoonwalkin , Ill do my best. So there's a new brief in the DC Circuit, where Trump's immunity appeal is being heard; same issue the Supreme Court declined to take before judgment. The merits are important, but most people think that he will lose.
The bigger worry is his ability to run out the clock because he gets an "interlocutory" (before trial) stay to take the issue up, during which Chutkan has ruled the case can't go forward. so every day it is in the DC Cir or Supreme Court is a day that the start of the 1/6 trial
is on hold. But now comes this eminent group of largely conservative lawyers saying wait a second, there is a unanimous opinion from 1989 in the Supreme Court by Scalia that nobody has raised yet. And it seems to say that you don't always get a stay just because if you win
There's an important part of Smith's motion today that I think has so far escaped notice.
1.Pages 16 to 19 argue that "the court should exclude in admissible testimony regarding the defendant's alleged state of mind."
2. This argument is in contrast to the balance of the motion, which is trying to keep Trump from introducing irrelevant testimony, such as the claim that the prosecution is just a political attacked by the deep state. Even if that were true,
And of course it isn't, it would've nothing to do with the jury's sole job of deciding the truth of the government allegations. 3. Trump's state of mind is different. It's hugely relevant to the charges. And he's trotted out several different versions of why he didn't have
Pretty interesting filing from Jack Smith in Judge Chutkan's court today. 1. First is just the fact of the filing. DOJ said it would comply with the deadline while the stay is in effect for the immunity motion to be decided by higher courts, and they previously had one filing.
2. but the fact of the filing has to make Trump apoplectic. First, just the thought of unrebutted argument sitting there in the judge's chambers, w/ clerks maybe taking a peek, has to wig him out. But more important, Trump's whole legal strategy is a public strategy--and here
he and Smith know that the filing will be devoured by press and public and put the DOJ's unanswered argument into public play. 3. Trump won't answer on the merits--he's relying on the stay. But he could file a motion before Chutkan asking her to order DOJ not to keep filing.