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

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.

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

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

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,

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

Why did the Supreme Court deny Smith's petition after accepting expedited review? Almost certainly because the DC circuit had intervened with a very quick schedule. That will give the court the benefit of its opinion in short order. True, it will result in moving the case back Another month or more, but the court is well aware of the election timeline, and the likelihood that Trump will have effectively sewn up the nomination before it's possible to issue the immunity ruling in any event. Also, it's significant that the decision was unanimous

A few points about the revelations from Mike Pence today: 1) he's going to be a killer witness against Trump -- the Boy Scout VP saying he told him repeatedly well before 1/6 that there was no fraud and Trump at one point seemed to acknowledge that he knew; 2) he strongly undermines Trump's advice of counsel defense. He testifies that Trump ignored Team Norman and brought in Team Crazy (actually brought in "crackpot" lawyers, in a rare instance of colorful Pence prose). But law is that you can't shop for lawyers until you get

A few more points about the Trump motion for immunity file today.

1. In contrast to the standard slapdash quality, and the obvious appeal to the political followers, the brief is relatively polished and larded up with fancy authorities, eg 4 federalist papers, and a Scalia book. There are four pages of authorities. Its intended audience is conservative judges.

2. We are analyzing it in terms of the odds of 5 justices or 2 members of a panel’s granting a stay to stop the trial while the appeal proceeds. But that’s not the only possible

I thought it would be useful to lay out the basic scheme from Coffee County, which is a more or less freestanding episode in indictment, w/r/t which Hall pleaded today.
1. Coffee County is 200 miles south of Atlanta, a rural Republican stronghold that went 70% for Trump in 2020. 2. After the election, Sidney Powell paid an Atlanta company named SullivanStrickler c 26k to go to Fulton County to break into computers there and get voter data, which they hoped would show undercounting of Trump votes.

An interesting detail about Meadows: he moved to remand the day after the charges and he moved to appeal from the loss on the remand motion the same day. What's that about? Seems to me his excellent lawyers had sussed out the grouping on Ds issue and he's trying as hard as he can to put distance b/t himself and Trump, who given his overall delay strategy can be expected to run out every clock. So if his appeals have run while Trump is say a few months behind, he hopes that will be a reason to go before and separate from Trump. He's probably going

A bit more tea-leaves reading from the list of non-indicted persons. As I said yesterday, the two bonafide members of the conspiracy as it's defined in the indictment whom special GJ wanted to indict but were not indicted are Mike Flynn and Cleta Mitchell. Flynn was present at the 12/18/20 White House meetingand also pushed strongly outside that meeting for military to seize voting machines. As @lawofruby points out, that activity lacks the specific nexus to Georgia that the conduct of other Trump higher-ups had. That would be a

Chesebro's motion for immunity is downright bizarre. Note first off that he files in state court before Judge McAffee, which is totally kosher, and probably shows that he thinks McAffee (young Repub federalist) is a more sympathetic then federal Judge Jones (Obama appointee.) But the argument is basically that the Electoral Count Act (which Trump is also always invoking, and which has more or less nothing to do w/ the crim case) provides for Congress to decide among "contingent" electors if States haven't acted. Therefore, federal law controls.

A thread to explain what's happening with the severance motions, and why Trump's motion -- on ground that not enough time to prepare on Chesebro's schedule--and Chesebro's motion -- acted totally separate from Powell--don't really fit with the law. 1. The default is against severance. Joint trials are more efficient and economical.
2. Prosecutors generally want to try defendants together, and if they point the finger at one another all the better. Defendants generally want to be separate and blame the empty chair.

The Fanni Willis motion for clarification about Chesebro‘s relationship to the rest of the codefendants presents a very tricky legal puzzle.

1. Chesebro had a right under GA law to the speedy trial. In fact, he probably made the motion in order to go to trial separate from the other defendants. It was a de facto motion to sever.

2. In general, defendants want to sever, so they can tell their own stories, inc pointing the finger at others, without the others' being able to point the finger at them.

The reporting that the 3rd law that Trump will be charged by Jack Smith with violating is 18 USC §241 has prompted, understandably, lots of surmises and speculations. The short answer is that we will know soon. In the meantime, however, the rough consensus seems to be around a theory of deprivation/impingement of right to vote for 88 M Americans or at least citizens of the 7 states w/ false electors. For a few reasons, I am less persuaded than many of my colleagues of this theory.

Appreciate @Lawrence on the @TheLastWord pointing out the normal (long) life cycle of a big case at DOJ. I mentioned as well the current capital trial in Pittsburgh, a complicated prosecution but not nearly as complicated as indicting Trump for 1/6: the massacre happened in 2018 and the trial is just going on now. Really nothing unusual about that. So the calls to vilify Garland/DOJ have to rest on the idea that somewhere around summer 2021 say (the argument is they didn't get fully going for a year) they should have concluded, hey Trump might run

This just came up on @allinwithchris in my discussion w/ @mehdirhasan & #ankushkhardori. It's true that @AWeissmann_ took DOJ to task for not moving faster in July of last year. But what he also made clear was
"before the hearings, federal agents and prosecutors were performing a classic “bottom up” criminal investigation of the Jan. 6 rioters...The hearings should inspire the Justice Department to rethink its approach." ie as I pointed out on @allibooknwithchris, they were playing by the book & Andrew and others urged them to change that, or apply a

Lots of passions erupting over the excellent @CarolLeonnig & #aarondavis article in today's @washingtonpost detailing the delay in opening a prosecution of Trump for 1/6. inc plenty of vitriol directed at me and others accused of being lickspittles (not exactly but it's a great @NormOrnstein word from this week's @talkingfedspod) for the AG. Carefully read, however, the article traces the failures to go after Trump immediately mainly to DOJ's decision to follow the standard procedure of working a case from the bottom up. That was very challenging

Lots of conjectures, some contradictory, swirling around. Let me just say a few things that seem relatively solid. 1) I think it’s unlikely that DOJ has decided to move the entire Mar-a-Lago case to SD Fla. there’s too much water under the bridge and it would represent such a dramatic change of plans. 2) venue concerns are very real and very important – in brief, the courts have made clear venue is a constitutional guarantee, and if DOJ messes it up, they could lose the entire case. 3) for that reason, smith might be thinking in terms of splitting.

Trump tells the judge that he expects not attend the E. Jean Carroll trial that starts next Tuesday. Point 1 is that he will defend through counsel (apparently Joe Tacopina), so won't be defaulting. Point 2 is how completely it will alienate the jury and what a field day Roberta Carter, Carroll's attorney, will have w/ it. As she told the judge, "if Mr Trump can find a way to attend wrestling championships etc, surely he could surmount the logistics of attending his own federal trial." And I don't see why she can't make those sorts of