Let's Go To Trial!

In DOJ's pitch for a January trial for Donny J, they use John Lauro's big mouth to advantage.https://t.co/9j0pAYeIDz pic.twitter.com/oyVFT3cdfy

— emptywheel (@emptywheel) August 10, 2023

In its August 3, 2023, Minute Order, the Court directed the Government to “file a brief proposing a trial date and providing an estimate of the time required to set forth the prosecution’s case in chief” at trial. The Government proposes that trial begin on January 2, 2024, and estimates that its case in chief will take no longer than four to six weeks. This trial date, and the proposed schedule outlined below, would give the defendant time to review the discovery in this case and prepare a defense, and would allow the Court and parties to fully litigate any pre-trial legal issues. Most importantly, a January 2 trial date would vindicate the public’s strong interest in a speedy trial—an interest guaranteed by the Constitution and federal law in all cases, but of particular significance here, where the defendant, a former president, is charged with conspiring to overturn the legitimate results of the 2020 presidential election, obstruct the certification of the election results, and discount citizens’ legitimate votes. 

I could have presented that to students as the model of an opening paragraph.  Each sentence sets up a separate topic which the brief will present, in order.  Here's the proposed calendar, for example (and an illustration of the importance of limine practice):

September 25, 2023: Rule 12 and other dispositive motions

• October 16, 2023: Oppositions to Rule 12 and other dispositive motions

• October 25, 2023: Replies in Support of Rule 12 and other dispositive motions

• TBD: Motions Hearing

• November 13, 2023: Motions in Limine

• November 27, 2023: Oppositions to Motions in Limine

• December 4, 2023: Replies in Support of Motions in Limine

• December 8, 2023: Final Pretrial Conference

• December 11, 2023: Jury Selection

• January 2, 2024: Trial 

And I have to quote this, the sentence following that calendar, because of the footnote:

This general schedule would give the defense almost two months after indictment to file Rule 12 and other dispositive motions, which raise legal issues, not issues of fact stemming from the review of discovery.1 

Here's the footnote:

It appears that defense counsel is already planning which motions the defendant will file. For instance, on CBS’s Face the Nation on August 6, 2023, Mr. Lauro stated, “[W]e’re going to be identifying and litigating a number of motions that we’re going to file on First Amendment grounds, or the fact that President Trump is immune as president from being prosecuted in this way.” He also expressed an intention to pursue a change of venue. See 8/6/23 CBS Face the Nation, available at https://www.cbsnews.com/video/86-face-the-nation/.

"We're watching you, Mr. Blue." 😎  

And yeah, since Judge Cannon is not presiding over this case, the DOJ doesn't seem too worried about those announced motions.  It's largely for appellate purposes anyway; building a record for appeal (if you don't raise it in the trial court, you can't raise it on appeal).  I doubt DOJ is worried about their chances there, either.  I have yet to be very impressed with the work product of Trump's attorneys.  Mostly they're spending other people's money, a la Heath Ledger's Joker.

Now let's skip the boring (but sound, IMHLO) legal arguments for the trial date, and get to the drama!

Defense counsel claimed, both in a media interview and in the initial hearing, see 8/3/23 Hr’g Tr. at 18, that the Government has been investigating this matter for three and a half years, while the defense is starting with a blank slate. Not only is this claim impossible, as January 6, 2021, was two and a half years ago, but it is disingenuous. The defendant has been aware of— and has responded forcefully in opposition to—certain relevant information made public through hearings and the report written by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. See, e.g., Letter from Donald J. Trump to Hon. Bennie G. Thompson, Chairman, House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Oct. 13, 2022). Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

Highlighted for no particular reason.

The final argument for the fact the court can handle a case like this in a timely (speedy trial) manner is almost art:

The proposed schedule provides ample time for the Court to ensure that the defendant receives both a fair and speedy trial—just as other courts throughout the country have in cases of substantial size and complexity. Other courts, for instance, have successfully administered justice in an efficient and just manner in complex cases. See, e.g., United States v. Paul Manafort, Jr., 18-cr-83 (E.D. Va.) (five months from indictment to trial in 32-count co-defendant complex tax evasion, FBAR, and bank fraud case); United States v. Mohammed Salameh, et. al., 93-cr-180 (S.D.N.Y) (six months between arrest and trial in first World Trade Center bombing trial); United States v. Robert McDonnell, 3:14-cr-12 (E.D. Va.) (seven months from indictment to trial in bribery case against Commonwealth’s Governor). 

Q: What do Manafort, a Muslim terrorist, a corrupt governor, and Donald Trump have in common?

A:They can all move easily and efficiently through the D. C. federal court system!  Even with convictions!!

😎