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Roger Parloff Profile picture
@rparloff
Aug 29 • 8 tweets • 3 min read • Read on X
When the govt files the “joint status report” tomorrow in US v Trump (DC), look for whether the govt is seeking Judge Chutkan’s preclearance of just the indictment or of *all* evidence it plans to present ...
1/8
... As my @lawfare colleagues explain below, the superseder scrubs the indictment of many official acts, but govt might yet try to resurface some purged allegations as evidence of the remaining *unofficial* acts for which Trump *can* be prosecuted. ...
/2
lawfaremedia.org/article/the-su…
@lawfare ... SCOTUS left unclear whether Judge Chutkan’s—& potentially SCOTUS’s—preclearance is req’d only for acts alleged to be crimes in the indictment, or for every scrap of evidence proving those crimes: 100s of exhibits & weeks of testimony. ...
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@lawfare ... E.g., Trump’s alleged NY crimes were concededly unofficial acts, but the People introduced some testimony/exhibits at trial (before SCOTUS ruled) that might have included official acts. Trump claims that Justice Merchan’s failure to preclear ...
/4 Image
@lawfare ... requires dismissal or vacating Trump's convictions. Merchan’s now deciding whether any evidence did, in fact, include official acts and, if so, whether they fell into admissible exceptions or were “harmless” (i.e., couldn’t have changed verdict) ...
/5
lawfaremedia.org/article/a-clos…
@lawfare ... Parts of CJ Roberts’ SCOTUS ruling make it sound like he wants the preclearance process to include tremendous detail—far beyond what is ordinarily required in an indictment. But if he wants all evidence to be precleared ...
/6
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@lawfare ... govt will need to put on a dress-rehearsal pretrial trial—the likes of which no one has ever seen. Neither side wants one. It would be the ultimate discovery tool for Trump, but could also be damaging to Trump in itself, if it’s public. ...
/7
@lawfare ... BTW, I’m borrowing the term “preclearance” from Justice Ketanji Brown Jackson, who used it bitterly to describe SCOTUS’ newly invented process, which she considered illegitimate. But it’s the best description of what’s going on, so I'm using it.
/8-end Image

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More from @rparloff

Roger Parloff Profile picture
Aug 30
Now that Trump has purported to “remove” his NY prosecution to federal court again, does Justice Merchan have power to rule on Trump’s immunity motion &, if he denies it, to sentence Trump? My thoughts here, but I invite @lee_kovarsky or anyone else to correct me. ...
1/5
Under 28 USC 1455(b)(1) Trump’s filing is untimely ("after trial"). He hasn’t sought USDJ Hellerstein’s leave to file late, and Hellerstein hasn’t granted it, so maybe Merchan can just go ahead. In addition ...
/2 Image
... under 1455(b)(3), removals of criminal cases (unlike removals of civil cases) do not deprive the state judge of power to rule on most matters, the only exception being entry of “judgment of conviction.” ...
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Read 5 tweets
Roger Parloff Profile picture
Aug 30
To comply with SCOTUS’ immunity ruling, SC Jack Smith’s superseder is conservative; it doesn’t push the envelope. That’s wise, but painful. I think the case survives, but SCOTUS has req’d suppression of highly probative evidence of grave crimes. ...
1/14
Two caveats: 1st, the cuts were not nec’ly Jack Smith’s decisions; DOJ was involved. 2d, it’s possible that stuff that was cut might resurface later, offered as “evidence” of unofficial acts. But not much, IMHO. A few tweets, maybe—if that. ...
/2
Clearly, the whole DOJ/Jeff Clark chunk of the case had to go; SCOTUS was explicit about that. But all parts of the case have been watered down, due to suppression of damning conversations Trump had with DOJ, WH counsel, & WH advisors. ...
/3
Read 15 tweets
Roger Parloff Profile picture
Aug 22
Because SCOTUS’s 6/28 ruling in US v Fischer narrowed the scope of 18 USC 1512c2 (obstruction of a proceeding), it’s important to find out if it’s still viable in Jan. 6 cases, in part because 2 of 4 charges in US v Trump (DC) are 1512c2 & conspiracy to commit it, 1512k. ...
1/7 Image
... DOJ is now pursuing at least 4 J6 defendants under 1512c2. All are rioters who riffled thru docs on Senators’ desks. Fischer requires proof that defs "impaired the availability or integrity for use in [a] proceeding of ... docs ... used in the proceeding,” or tried to. ...
/2
I mentioned two of these cases yesterday (below), which I thought were the first clear examples, but a reader—@sfoguj—just alerted me to two more, that actually came a week earlier. ...
/3
Read 7 tweets
Roger Parloff Profile picture
Aug 21
Here’s the filing in which the govt commits, for the first time, to trying to prove that two Jan 6 defendants violated 18 USC 1512c2 (obstruction of an official proceeding) despite SCOTUS'S dramatic narrowing of that law’s scope in Fischer v US. ...

1/6 bit.ly/3Aw5Jsv
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… Govt argues to USDJ Colleen Kollar-Kotelly that it can use the existing indictment but she must give this new jury instruction, requiring proof that defendants impaired the availability or integrity for use in a proceeding of records, documents, or objects. ...
/2 Image
... The govt also outlines how it plans to prove its case. It says the Chilcoats traveled from OH to DC for the rally. They each made videos as they climbed the scaffolding to the Upper West Terrace, with her saying, “We’re going to show them how they need to vote today.” ...
/3
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Read 6 tweets
Roger Parloff Profile picture
Aug 20
The upcoming resentencing of Jan 6 def Thomas Robertson will help gauge whether SCOTUS’s Fischer ruling, casting doubt on convictions for 18 USC 1512c2 (obstruction of an official proceeding), will force lower sentences for serious J6 defs. It might not. ...
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Though DOJ has claimed it can still prove 1512c2 after Fischer, there’s a weird interaction between Fischer and a DC Circuit ruling in March, US v Brock, that may actually incentivize DOJ to just dismiss the 1512c2 count for defs with multiple felonies. I’ll explain. ...
/2
Robertson, an off-duty Rocky Mount, VA, police officer on J6, was convicted after trial of 5 felonies, including 1512c2. In the weeks leading up to J6, he advocated on social media for “open armed rebellion” and “counter-insurgency,” per DOJ sentencing memo. ...
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Read 15 tweets
Roger Parloff Profile picture
Aug 19
In not opposing Trump's request to postpone in sentencing, the People recognize that, as a practical matter, doing so may be necessary to allow "orderly" appellate consideration of whether he's entitled to interlocutory appeal of Justice Merchan's immunity ruling. ...
/1 Image
Note also that the People's sentencing memo will be sealed (at least initially), which is not the case in federal court.
Full ruling below or here: ...
/2 bit.ly/4dORpJE
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The dispute is this: SCOTUS said a ruling on whether a former president is immune from prosecution is immediately appealable. Here, no one claims Trump is immune from prosecution; the issue is whether certain evidence was properly admitted. Not crystal clear what happens.
/3-end
Read 4 tweets

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