Thread by @rparloff

It’s Sep 5 and I’m at Prettyman US Courthouse in DC for today’s 10am hearing in US v Trump before Judge Tanya Chutkan. I’ll be live-tweeting for @lawfare from the media room, while colleague @annabower will be in the courtroom. ...
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Trump's attys & Special Counsel will be arguing over the timing & nature of the path forward after SCOTUS’s immunity ruling. This afternoon, at 4pm, @lawfare editor-in-chief Ben Wittes will interview @AnnaBower and me about today’s events. ...
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lawfaremedia.org/article/lawfar…

@lawfare @AnnaBower Trump will probably also be arraigned today on the new "superseding" indictment, but he has waived his appearance, so that will probably be very pro forma. ...
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@lawfare @AnnaBower Incidentally, Judge Chutkan sits in Courtroom 9, on the 4th floor of the older part of the bldg (1952), pictured in tweet 1. The stolid govt'l style is called "stripped classicism," which I assumes means classicism but stripped of most ornamentation. ...
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@lawfare @AnnaBower For those of you who followed along during the Oath Keepers & Proud Boys trials—those took place in the beautiful annex (2005) to the right, designed by Michael Graves, which features a 6-floor atrium & reddish "curly" maple paneling everywhere. We're 3 blocks from Capitol...
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@lawfare @AnnaBower The media room has also been upgraded since the OK and PB trials. There are now 2 media rooms, at least for big events like today's, and the old one, where I am, has been upgraded, with plugs galore & one huge HD screen (> 8 feet diagonally?) instead of 2 smaller ones. ...
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So the enormous screen has just illuminated with views of the courtroom, which is always a relief. As in the past, it's split into 4 quadrants. One shows the bench; two show counsel tables; the 4th is black now, but typically shows exhibits.
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At the moment, we can't see the prosecution table well. At defense table we see John Lauro, Todd Blanche, Emil Bove, a man I assume is Lauro partner Gregory Singer, and another male I can't identify.
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All rise. Chutkan takes bench.
criminal case 23 dash 257 is called.
govt counsel: Thomas Windom & Molly Gaston. there's an fbi agent at their table.
defense: John Lauro identifies Trump's crew, which includes a paralegal.

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Lauro: life has been almost meaningless without seeing you.
Judge: enjoy it while it lasts.
...
Chutkan now summarizing the SCOTUS ruling.
Chutkan: purpose of this hearing is to confirm trump's arraignment & 2d to discuss schedule going forward.

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she says she hopes to issue a schedule today, tho not at the hearing itself.
Now Chutkan is describing the superseding indictment & fact that Trump has waived his appearance. He pleas not guilty on all 4 counts. She's confirming all that on the record now.
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Chutkan now summarizing the 4 charges. Lauro confirms Trump rec'd indictment, reviewed it, entering plea of not guilty to all 4 counts. waiving full formal reading.
Chutkan accepts the waiver. arraignment complete.
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Judge: let's go over scheduling ...
She's now listing pending motions before SCOTUS ruling.
Judge: def's reply brief to discovery motions needs to be reset. ...
She's discussing how much time was remaining on various deadlines at time of stay. ...
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... E.g., motions in limine were due in about 3 weeks at the time everything was stayed due to the immunity challenge.
Now she turns to parties proposals for how to move forward.
Some common ground. Agree on issues to be resolved. ...
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Both sides contemplate that at least some issues be resolved concurrenty.
Govt proposes that it files first filing relating to immunity. Defense could respond. govt would reply.
Govt wants other motions decided concurrently. AUSA Windom confirms that's their position.
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Chutkan now describes Trump's proposed approach.

Chutkan: let's first talk about the immunity issue, just want to nail down what that approach would look like. Some questions for Windom.
J: you propose filing before def moves to dismiss. not ordinary course. why depart?

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Windom: we're not in a typical situation. SCOTUS has created new law. ... looking for most efficient practical way forward. indictment doesn't include all the categories of info we believe may be subject to immunity litigation. that's why we propose to go first.

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we should structure a schedule that leads to only one interlocutory appeal. Def proposes several interlocutory appeals. we know there will be an interlocutory appeal. trhying to limit it to one.
we'd file a comprehensive description of both pled & unpled facts. ...
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Chutkan: would include a "proffer." be more specific? form it would take. written?
Windom: our initial view is this: comprehensive brief setting forth facts. in and outside indictment. substantial number of exhibits. GJ transcripts, interview transcripts, 302s ...

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would allow court to continue context . in addition we'd set forth why we believe conduct is private in nature and not subject to immunity.
then with respect to allegations re Vice President--why we believe presumption of immunity is rebutted. benefit of us going first ...
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... is you'd have everything in one place. cleaner docket for you and for any appellate court.
Chutkan: not proffering any actual [oral] evidence. would be written.
Windom: that's right. ... put forth papers. review them. decide whether court needs additional info ...
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... then court can decide whatever [additional] it needs.
Chutkan: you said you're prepared to file promptly. days? weeks?
Windom: we do have to write this thing. that will take a little time but we've begun. it's under way. anticipate it would take 2-3 weeks--closer to 3.

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Judge: last week of September?
Windom: 9/26 [-ish]. Defense has suggested it will take substantial amount of time for them to put for their views. another reason for us to go first. we can go promptly.
Judge asks to speak to Lauro.
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Judge: beyond fact the govt's proposal is procedurally irregular, is that in and of itsself a problem or is there some other prejudice.
Lauro: enormously prejudicial to Trump. ... [govt] proposes approach that turns rules on their head. have to look at discovery issues ...
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... that are outstanding.
Judge: why can't you do that at same time. ... during the briefing schedule?
Lauro: to address what they submit we have to have all the discovery. everything we're entitled.
other problem, SCOTUS has already decided discussions with VP were official
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... so as an initial matter. the issue before court is whether govt can overcome presumption. no way, no possible way lack of immunity would result in intrusion on an important govt function. if they can't show that, entire indictment improper & illegitimate. gateway issue
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that needs to be decided--
Judge: i actually dont think so. scotus ruled on 3 categories. certainly VP conversations may be subject to presumptive immunity. but i have to decide if those conversations are somehow outside his official duties. ...
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Lauro: i ask you to re-review that opinion. scotus decided they are [presumptively] immune. has to see if govt can overcome presumptive immunity. ... if in fact communications are immune, entire indictment fails. entire indictment based on immune info. ...
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Judge: i'm not sure that's my reading of the [SCOTUS] ruling. but it's subject to a lot of different readings.
Lauro: it's a legal decision we can provide guidance to the court without full evidentiary hearing.
we get opportunity to go first under Rule 12.

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Judge: in one way of looking on it, your motion to dismiss is still pending. Govt is just seeking supplemental briefing.
Lauro: they're asking for an asymmetric protocol.
Judge: courts rule on the time based on evidentiary proffers. I'm the one to decide whether ...

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I ultimately need an evidentiary hearing. are you saying i don't have that power?
Lauro: you should scrupulously follow SCOTUS ruling
Judge: i dont think they addressed details of how i do it.
you want witnesses?
Lauro: ultimately we do want that. but first we want ...
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to resolve other pending motions.
we want to advance our arguments first. this is our motion.
Judge Chutkan suggests he doesn't want to go forward till next year. He denies it, but she says that's what your schedule says.
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Judge: as i read it, SCOTUS expects us decide the immunity issue forthwith. as early as possible. your schedule, we wouldn't begin briefing immunity until december.
Lauro: because we'd be filing our briefing based on info we receive from the govt. ... These important issues
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should not be decided based on an asymmetrical proffer.
Judge: not unfair. govt files open brief, you get a look, chance to address. nothing unfair, just a matter of who goes first.
Lauro: incredibly unfair that they get to put into the record at this terribly sensitive time /34

in our nation's history ...

Now Lauro suggesting that if govt puts in proffer, maybe it should be done under seal. And if it does, Lauro wants chance to make public exculpatory material that he says is currently under protective order.
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Judge is saying she won't take the election into account in terms of timing.
Lauro: letting prosecution go first limits our ability to structure our arguments ... we've had 14M pp of documents we've had to look through--
Judge: you're own proposed schedule says you ...
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can resolve discovery issues simultaneously with resolving the immunity issues.
Lauro: there's something unseemly about a rush to judgment only in this case--
Judge: hardly a rush to judgment. case been pending over a year. we can't even contemplate a trial date ...
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...
Lauro: new SCOTUS ruling changes complexion of case completely.
Judge: we haven't even discussed how long you need to respond. you can have time to respond. Not prejudicial to you at all.
Lauro: it's a quagmire. completely prejudicial. We're going to unseal GJ material
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that is very exonerative of president trump because it needs to be on the record and public immediately. we will do that if that's how govt wants to proceed. but for them to selectively portray how they want to proceed with their case shows fundamental unfairness.
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Lauro: this has to be done in a very deliberative way. not back-of-the-envelope. we're saying, deal with legal issues first. your honor may decide that comms with VP were immune and, if so, indictment needs to be dismissed. right away. let's deal with gateway issues 1st.
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Judge: SCOTUS had indictment before them with comms with VP. they could've ruled then. they didn't. they sent it back to me. so not sure i can agree with you that as a matter of law i can dismiss the superseding indictment at all.
Lauro: of course you can. it's crystal clear
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Lauro: only issue is whether they can overcome the presumption which is an incredibly high bar. prove no chance of intrusion. incredibly high bar. if they fail, then whole indictment craters. it goes away. this is logical way to deal with these issues.
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Lauro: they're suggesting they leapfrog into merits arguments over all the official acts. all that is wasted time if Your Honor decides that pence communications are immune.
Judge: alright, you've made your argument. ...
Lauro: we need the discovery we've requested --
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Lauro: discovery issues were stayed almost a year ago. we're being put it an incredibly unfair position for no reason at all. in light of SCOTUS ruling ... we're talking about a president of the US.
Judge: I'm not talking about a president of the US ... it strikes me ...

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that you're [trying to time the displaying of evidence based on the timing of the election and Chutkan's not going to take the election into account.]
Judge: thank you. Mr Windom?
Windom: 5 quick points.
1. discovery: big reveal. no additional discovery we anticipate.

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Windom: 2 days ago we provided grand jury transcripts & exhibits for superseding indictment. they have that.
2. motions to dismiss with respect to VP's allegations--SCOTUS was all about fact-found analysis and fact determinations. Impossible for court to do that without
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... info we plan to put forward. ...
Chutkan asks about defense wanting to unseal certain material. Windom says there are provision in the protective order that they can follow to litigate that.
3. SCOTUS doesn't anticipate automatic dismissal of indictment
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[I missed something in there. sorry.]
4. grand jury struck 9 full pages from original indictment.
Now Windom talking about how defense filed 52 page brief in NY just nine days after SCOTUS ruling, showing how quickly they can move.
Judge: congratulations, Mr. Blanche.
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[sorry I missed point 5.]
Judge: don't need any more rhetoric on how grave and important this is.
Lauro: it's not rhetoric, it's legal argument. ... the very first thing your honor needs to do is decide whether that presumption of immunity [for VP comms] can be overcome. ...
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Judge: why can't I address that in a single brief? Why does it have to be piecemeal, other than to extend the schedule?
Lauro: if you decide this issue, all that briefing never has to take place. why should we engage in mos and mos of briefing if your honor can decide ...
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Lauro: ... this issue and it will end the case.
They made a calculated risk. they bet the VP material were going to be held immune. Once that's determined,
[case ends]. we have an illegitimate prosecutor--we haven't talked about that--and an illegitimate indictment. ...
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Judge: you want your opening brief to deal solely with the issues about the VP comms?
Lauro: exactly. ... I'm an originalist....
Judge: you may be an originalist but i'm a trial judge.
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Now discussing defense request to challenge propriety of appointment of special counsel. Chutkan wants to know why it wasn't filed when dispositive motions were due.
Lauro explains that there was binding DC precedent against them at time. But now very persuasive ...
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... ruling handed down by a district court judge [Cannon].
there's certainly no waiver here.
Judge: this expired well before the appeal in this case. there's binding DC precedent on this. you have an opinion by a district jduge in another circuit which frankly this court .../53

doesn't find persuasive.
Lauro: court should consider this issue. justice thomas in effect directed us to do this.
Judge: he directed you?
Lauro: well if you read that opinion it's something we need to do to preserve that issue.
Judge: Mr. Windom?
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Windom: despite binding circuit precedent, defs in this court file motions all the time to preserve issues. [they didn't do that.]
so long as it does not affect briefing schedule for immunity issue, hard to see how govt is prejudiced. but dont see basis for why ...
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... defendant should not be found to have waived.
Judge: i'm going to allow defense to file that motion. Want you to explain why you think you have enough so that binding DC precedent doesn't preclude my [granting it].
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...
Judge: is it your position that if contacts with VP are out, whole indictment is out?
Lauro: yes. they used immune evidence in connection with grand jury indictment. that's what SCOTUS says.
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Chutkan: now let's talk about motion to dismiss based on statutory grounds. ... now we have superseding indictment. ...
Lauro: I think immunity should be resolved first before we get to other issues.
Judge: may be so, but we can work concurrently.
Lauro: no objection ...
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Windom agrees that all these things can be going on concurrently.
Judge Chutkan now brings up the Fischer ruling, which narrowed "corrupt obstruction of an official proceeding" (18 USC 1512c2), which is the basis for two counts against Trump. Lauro wants to file an entirely
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... new motion but Chutkan sees it more as a supplemental brief to what he's already filed.
Chutkan: I'm inclined to vacate my denial of motion to dismiss on statutory grounds and to simply seek supplemental briefing. ...
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Lauro is now saying that when he talks about discovery issues, he's talking about discovery relating to immunity. But he's also asking for "Brady material" which is any evidence that exonerates the defendant.
Judge: Brady is an ongoing obligation. Any reason to believe ...
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... there's Brady material they haven't already turned over? [I don't understand the answer.]
Lauro: there's also a CIPA [Classified Info Procedures Act] issue that's pending.
Judge: yes.
Windom: we took comprehensive view of what should be produced. we've met our obligations/62

Judge: I'm going to assume parties will continue to meet and confer and discuss discovery issues.
AUSA Windom: there are 2 pending discovery motions: motion to compel and motion to define the "scope of the prosecution team."
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Windom: . Defense suggested taking up "scope of prosecution team" motion first. But the two can't be disentangled.
Judge: I agree.
Judge now saying that setting a trial date doesn't make sense because of the pending immunity issues (subject to interlocutory appeal).

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Judge: that's all i have for today. Anything else Mr. Windom? Mr. Lauro? [no, no]
Hearing concludes.
Thanks for following. Please consider listening to @annabower, Ben Wittes & me discuss at 4pm.
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