(Photo by David Becker/Getty Images)
Donald Trump’s lawyers are trying something new in the election interference case, and that thing is civility. Since August of 2023, attorneys John Lauro and Todd Blanche have larded their pleadings with invective, calling the special counsel a puppet of the Biden administration who timed his filings to protect his “boss’s” flagging electoral prospects and characterizing the judge’s own orders as lawless.
In their very last filing in this case, Lauro and Blanche accused Special Counsel Jack Smith of presenting “so-called ‘evidence’” which he had “unlawfully cherry-picked and mischaracterized,” in an act of “overt and inappropriate election interference.” This act was a brief defending its superseding indictment in light of the Supreme Court’s presidential immunity decision in July. Trump characterized the filing as “improper,” despite the fact that Judge Tanya Chutkan herself ordered the prosecutor to file it.
The special counsel filed an appendix to that brief under seal, and Judge Chutkan invited the defendant to comment on the proposed redactions. He did not comment on the proposed redactions, which he had referred to as “impotent” in a prior filing. Instead he asked the court to “stay that determination for a reasonable period of time so that President Trump can evaluate litigation options relating to the decision.” Noting that “[a]s in his previous filing, he identifies no specific substantive objections to particular proposed redactions,” the court nonetheless granted Trump seven additional days before publishing the redacted filing on the public docket.
Presumably the court thought Trump would race to the Circuit Court or perhaps the Supreme Court in advance of the deadline expiring today seeking mandamus or at least an administrative stay. But he didn’t do that either. Instead he filed yet another motion asking for the exact same relief, but this time with about 75 percent less incendiary rhetoric. After trying literally everything else, Trump is trying to act normal for the first time in this case.
Well, normalish. What he’s asking for is still batshit and stupid. But at least he’s being polite … graded on a curve.
He asks Judge Chutkan to stay release of the appendix until his own response is released on November 14. That document is due on the 7th, and will remain under seal for a week to allow the parties to argue about redactions, and Trump suggests that potential jurors will be less poisoned by seeing the two filings together.
“[I]f the Court immediately releases the Special Counsel’s cherry-picked documents, potential jurors will be left with a skewed, one-sided, and inaccurate picture of this case. Those same potential jurors may not see President Trump’s later responsive filing, and even if some do, first impressions are prone to remain,” he argues. “That is especially so as this Court’s gag order unconstitutionally restricts President Trump’s ability to utilize First Amendment-protected political speech to publicly comment on these proceedings, including the SA Appendix.” (Okay, that’s a bit inappropriate. Old habits die hard!)
This is transparent bullshit, of course. Obviously he just wants to keep this document out of the public before the election. And once again he approvingly quotes Elie Honig and Jack Goldsmith to buttress his point, even though their arguments are based solely on proximity to the election, not poisoning the jury pool. The court has already rejected the “Defendant’s concern with the political consequences of these proceedings” and warned him that “Future filings should be directed to the issues before the court.”
Trump’s lawyers seem to think that perhaps they will get a different result if they dial back the invective a scosh and repeat their argument in a slightly different way.
Although the Court has decided, over President Trump’s objections, that the “‘political consequences of these proceedings’ is not a cognizable legal prejudice,” the Court has not addressed the public’s interest in ensuring that this case does not unduly interfere, or appear to interfere, with the ongoing election. A temporary stay would serve that interest by ensuring that the redacted SA Appendix is accompanied by President Trump’s rebuttal, reducing (but again not eliminating) this case’s improper impact on the election, as well as the potential for voter confusion. Additionally, a stay would promote public confidence in the integrity of these proceedings and a court’s duty to remain apolitical.
That is one “litigation option,” but it’s unlikely to be an effective one. Perhaps if Trump had filed this on Monday and gotten an immediate denial, he’d have had to time for a Hail Mary pass to SCOTUS. As it stands, the stay expires today and Judge Chutkan is almost certain to deny the request and order the immediate unsealing of the appendix in the same order.
The filing notes that “Counsel for President Trump requested a position from the Special Counsel by email on October 16, 2024, and again on October 17, 2024. As of the time of this filing, the Special Counsel has not responded.” Presumably because Jack Smith and his team were laughing so hard they couldn’t type anything out before this hit the docket this morning at 9am.
US v. Trump [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.