A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
I will warn you now that you are likely to be exhausted, worn out, or numbed to the Trump prosecutions well before they reach trial. It is part and parcel of Trump’s strategy to delay his personal reckoning for as long as possible in the hopes that he wins the 2024 election and misuses the powers of the presidency to make the prosecutions of himself go away.
We can talk in hypotheticals about the slow-rolling, the endless motions practice, the political talking points masked as legal arguments, the failure to address let alone deny the substance of the charges against him, but until you start to see it play out in court, it’s hard to understand what a grinding, tedious, inane process this is going to be.
But we certainly have a glimpse of it now. Over the course of past five days, Trump’s legal team has managed to make a mountain out of the molehill that is a routine protective order covering discovery materials. It’s just a taste of what is to come.
Yes, federal judges are generally pretty good about keeping things moving, avoiding getting snookered, and not being drawn in by disruptive defense strategies. But this isn’t really about the courts or the judges or the legal system somehow failing to account for the likes of a Trump.
This is about Trump having a losing hand, especially in the Jan. 6 and Mar-a-Lago cases. This is about his team knowing he can’t win at trial and he can’t (yet) strike a deal, and that his only shot is to delay until after the election.
The constraints that would normally keep a defendant from taking a kamikaze approach to trial – pissing off the judge, losing at trial, making things worse for yourself in the end – don’t apply here. He can’t win there, so he’s playing a different game entirely. (Before criminal defense lawyers write in, I realize a lot of your clients have disordered personalities and act against their own self-interest all of the time, but this is still fundamentally a different game for Trump.)
Let’s break it down.
I’ll keep this simple for non-lawyers trying to make sense of a confused procedural situation.
Special Counsel Jack Smith is trying to move the Jan. 6 case forward as fast as possible. To that end, he is speeding up how quickly he provides pre-trial discovery to Trump. But before he turns over the discovery material, he’s asked U.S. District Judge Tanya Chutkan to issue a protective order so that Trump can’t misuse and abuse the discovery process to try the case in the media. This is fairly routine, so much so that both sides are drawing on protective orders issued in other cases as templates for this one.
But Trump has objected to the government’s protective order. And it’s been willy nilly drafting its own versions while trying to draw out the process by seeking more time to respond and a hearing to argue the matter.
Smith’s team had seen his coming, and they’ve been as ready as they could be. In an extraordinary turnaround yesterday, Smith’s team filed its reply to Trump’s opposition to the protective order in under three hours.
Despite Smith’s best effort to get Chutkan to rule without a hearing, she decided she wanted an in-person argument and quickly set the stage for one before the end of the week. It’s not an unreasonable balance for Chutkan to strike, but it will play out like this over and over again. Trump will turn every minor procedural skirmish into World War III and every serious matter into armageddon. There’s no real way for a reasonable judge to balance that kind of strategy in a way that doesn’t allow for at least some delays.
Again, Trump is playing a different game.
This Is Concerning
The other big development yesterday came in the Mar-a-Lago case, where U.S District Judge Aileen Cannon did two things that rang alarm bells:
- The most alarming thing from Cannon was suggesting in an order that there was some legal impropriety in Special Counsel Jack Smith using grand juries in South Florida and Washington, D.C. Cannon on her own raised the issue in an unrelated procedural matter. She’s asked the parties to brief her on it, tossing a bone to Trump, who hadn’t yet raised this issue formally himself. It’s not clear what Cannon is aiming at here, or what is conceivably improper about using the DC grand jury to investigate obstruction of justice after the initial Mar-a-Lago indictment was handed down.
- Less alarming but still concerning: Cannon rejected Smith’s filing of materials under seal to help her address potential conflicts of interest that defendant Walt Nauta attorney Stan Woodward has in the case. She’s holding Smith to an exacting standard for filing materials under seal. Stay tuned on this one.
She Drew The Short Straw
U.S. Marshals Service beefs up security for U.S. District Judge Tanya Chutkan.
Is Eastman Finally Sweating?
Now known as co-conspirator 2 in the Trump Jan. 6 indictment, Eastman seems to realize that he, too, may face charges. So he’s asking for his disbarment proceeding in California to be postponed.
Eastman is stuck between giving testimony in the bar proceeding that could further incriminate him or pleading the 5th and risk losing his license to practice law.
Tough spot to be in. Hate to see it.
Bernie Kerik Meets With Jack Smith’s Team
The interview with the convicted felon and Trump ally “largely focused on what Trump’s former attorney Rudy Giuliani did to prove that Trump actually won the election,” CNN reported.
The Ones We Sent Away
A new piece by Jennifer Senior drawing on her own family’s experience to recount the pain of the era of institutionalization.
Couping is Fiiiine!
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