Lauro Tries It His Client’s Way

To the shocking number of Twitter followers I gained today (ty @AnnaBower), I'm sorry to disappoint. I did not live tweet the hearing, but I did produce a dispatch to make up for it. I now leave you with the saga from court: https://t.co/shkFUB9Zeq

— Saraphin Dhanani (@SaraphinD) August 11, 2023

It’s well worth reading because the hearing more thoroughly comes to life in this narrative; and a few new wrinkles come to light as well. Like these:

Lauro reminds the court that these are “uncharted waters.” Trump’s political opponent has dispatched his Justice Department to bring criminal charges against the former president, he argues. Trump has the right to speak about these issues. 

Chutkan’s expression is changed. The corner smile has disappeared. One eyebrow lifts: 🤨. She leans into the mic. Her voice deepens, and the court is silent. If Trump’s speech causes witness harassment over the course of his political campaign, she says, “it has to yield to the orderly administration of justice. If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.”

That was actually a pretty good try on Lauro’s part, though he just teed up the judge’s response. There is a “be careful what you wish for” lesson in zealous advocacy for your client. Wiser heads think strategically; Lauro doesn’t seem to, as the next effort shows:

But if prosecutors decide to bring the case during a campaign season, “Trump has a right to address his political opponent,” Lauro responds. 

Chutkan’s eyes roll to the back of her head. There are limits, she chides. There are limits to what goes on in his “day job” when he’s a criminal defendant. There will inherently be limits to his speech, she states. 

“My client will abide by the integrity of the process,” Lauro starts but then says, but he “can’t be subject to some kind of contempt trap,” he insists. Judge Chutkan is baffled. “Nobody has talked about a contempt trap. We are talking about the parameters of [this] order,” she says. Trump’s speech rights must yield to pretrial release conditions and rules against witness intimidation. 

But what about if Trump is talking about a memory on the campaign trail, Lauro pleads? If that memory intimidates witnesses, he can’t talk about it, she concludes with a sideways look at Lauro. 

She has to level-set again, bringing Lauro back to the issue of sensitive vs. nonsensitive materials. But Lauro is undeterred. The government’s protective order would provide an enormous political “advantage" to Biden and his campaign. He later paints a picture: In the course of a heated campaign, Trump may inadvertently say something that will cause prosecutors to throw a red flag up and say he was in violation of the protective order. “Everything that we do now is under a political microscope,” Lauro concludes. 

Judge Chutkan is firm in her next remark. “This is a criminal trial. I will not factor in the effects it will have on a political campaign on either side.” She repeats the sentiment. “The existence of a political campaign is not going to have a bearing on my decision. … I will keep politics out.”

He doesn’t get better, as this last example shows. It’s a bit longer than it needs to be, but I like where it ends, so I kept going. Don’t worry, I will point out the important bits.

Another dispute concerns paragraph 8(e) of the defense’s proposed protective order. The defense strikes “recordings, transcripts, interview reports, and related exhibits of witness interviews,” which are designated as sensitive, and replaces the language with “Information regarding the government’s confidential sources or which may jeopardize witness security.” The government objects, citing recorded witness interviews conducted outside of grand jury proceedings, as just one example, including interviews in preparation for the grand jury proceedings that would fall outside the scope of the protective order if the defense’s language is adopted. 

Lauro, though, has a different concern. He’s worried about the transcripts from the January 6 Committee in the House, “assuming they didn’t destroy it,” Lauro quickly notes. “That clearly should not be designated as sensitive, particularly if it has Brady … materials.” In response, Judge Chutkan chides Lauro for “conflating what your client needs to defend himself and what he wants to do politically. Your client's defense has to happen in the courtroom, not on the internet. To the extent your client wants to make statements on the internet, he has to yield to witness’ security.” 

“Trump will scrupulously abide by your orders,” Lauro promises. Judge Chutkan gives him the side eye. But he asks her to consider the debate stage, where there are “arguments back and forth” and his statements may inadvertently implicate materials in discovery. “He should not have that chill in how he advocates,” Lauro contends. 

Judge Chutkan is apparently unmoved by Trump’s plight “He’s a criminal defendant. He’s going to have restrictions like every other defendant … The fact that he is a candidate does not give him [greater] latitude than any other defendant.”

Call me old-fashioned, but I have a problem with lawyers dealing in conspiracy theories in open court, even as a throw-away line nobody (AFAIK) caught. The documents, as I’ve had occasion to note before, are on the internet. In fact, I’m wondering if the judge didn’t already know that (given her experience with J6 cases, it’s more than likely). Maybe I’m reading too much into her response, but for now I’m inclined to give her the benefit of the doubt.

This confirms my opinion that Trump is not hiring the best lawyers. If the judge and DOJ are playing chess (she gave the defense some of what it wanted with the right hand, then proceeded to take it almost all away with the rest of her decisions in the hearing and in the order she signed), Lauro is playing checkers or, more charitably, doing the best with the hand he was dealt (yes, I do mix metaphors like a cement truck). He’s doing his best in a weak position, but then he has to go and talk like Trump. And Trump? Trump is eating crayons.

But he still has the good sense not to piss off this judge. He heard her closing remarks about her ability to set, and reset, the trial date. He knows his immediate future is now in his hands.