Lawyers who regularly engage in appellate practice understand that the appellate court is thinking, not just about this case, but how their decision would be applied to future cases, and they’re looking for the edges.(he constantly answered simple hypotheticals by saying things like "We never suggested that this was the case.")
Those are both good points. See my next post.Rolodex wrote: ↑Mon Nov 20, 2023 2:14 pm IANAL but I see two issues:
1. The case the DoJ was arguing - Gentile - was about the lawyers in that case, not the defendant.
2. Most - or at lease very few defendants in criminal cases - have huge online audiences. While witness intimidation is nothing new -
I don't agree with Kanefield's conclusion that line prosecutors have a "place in the government hierarchy" for purposes of determining that they are First Amendment public figures. The bottom of a hierarchy may be a "place" for some purposes, but I think that the test requires some significant supervisory seniority. But aside from that, her analysis seems strong.Is anyone listening to the oral arguments in the appellate court about the Trump gag order in the D.C. case?
https://www.youtube.com/USCourtsCADC
Right now the appellate court is asking about Trump naming witnesses who are not public figures and the interest of the trial court to protect the integrity of the trial.
This is a place where the gag order is strongest.
They are discussing which test should apply.
/1
Here is what is gong on:: There is a gap in the law. The court has to devise a test because there isn't one.
There is no legal test because in the past, it was the lawyers who had to be silenced.
No defendant has challenged the routine gag orders that are applied.
The difference is an important one: Lawyers can be silenced because they are officers of the court and different rules apply to them.
The appellate court wants to come up with a test that will withstand SCOTUS scrutiny.
/2
The Court is now trying to figure out how to revise the gag order to take care of vagueness and prior restraint issues.
Reading the tea leaves: The Court seems to be acknowledging that there are portions of the gag order that need to be tweaked to address vagueness and issues of prior restraint.
The court keeps talking about "prophylactic remedies," which gets us to prior restraints, which are problematic, which is why this is going on and on.
3/
Hypothetical: It is public record that Pence is going to testify the next day. Can Trump tweet out, "Pence can still do the right thing if he says the right stuff tomorrow."
Court: Is this communicating with the witness?
Sauer said "no"
OH MY. Yikes. He won't give an inch.
The government lawyer is up, and he is also talking too fast. (Signs of overpreparing?)
They're talking about court staff, which is an easier issue.
4/
The reality is that the panel of justices probably drafted their opinion and they are right now poking the lawyers to see where their decision might be weak.
They're also pressing the government lawyer as hard as they pressed Sauer.
Also, the judge did throw in earlier that there are strong First Amendment protections for Trump.
Now they're talking about Trump naming the special prosecutor himself, which is more difficult under the First Amendment because he's a public figure.
5/
The issue here is that the word "target" in the gag order is too vague when applied to the prosecutors, who are public figures.
Actually, the government is also staking out an extreme position which is that if Trump thinks that the prosecutor is politically biased, he can file a motion but can't say it in the media.
(Nope. Public officials can't shield themselves from criticism)
Reading the tea leaves, it appears that the gag order will stand, but with numerous modifications.
6/
Tea leaves: The word "target" is too vague.
More tea leaves: Public figures will be excluded.
Now the issue is whether line prosecutors are public figures.
Next issue: What about witnesses who are also public figures? What if they are writing books about Trump? Is it fair to say Trump can't respond?
The standard the government is offering right now might be too vague.
The DA suggest that Trump should be limited to what other defendants could say, but he's the first to challenge it.
7/
I hope anyone listening comes away at least with this: These issues are not easy or straightforward.
Almost all the issues Trump raises in court are silly or without basis.'
This is probably the first issue I have seen Trump raise in court that is not a slam dunk in the Trump Will Lose Department.
The court pointed out (subtly through a question) that there is something wrong with the idea that the moment an indictment is filed, a defendant loses First Amendment rights.
8/
Aside: The fact that something has happened for years doesn't make it right.
Right now the judge is pointing out what I said in this blog post:
https://terikanefield.com/trump-gag-ord ... mplicated/
The judge: Most criminal defendants choose not to speak. They listen to counsel and shut up.
This defendant wants to speak.
The Gentile case they are talking about was one in which the lawyers were speaking out of line, the court then shut everyone up, but the defendant never wanted to speak.
9/
Someone asked: "what sort of criteria could be used to determine whether the line prosecutors are public figures?"
No doubt, Jack Smith is a public figure.
As far as the standard, I just did a quick search through New York Times v. Sullivan for an answer, and it appears that a person who has a "place in the government hierarchy" is a public figure.
So that would include line prosecutors.
But the court right now has to create law where there isn't one, so it isn't clear what it will do.
10/
"For completeness," the panel was Millett (Obama nominee), Pillard (same), and Garcia (Biden nominee). (The same panel that issued the temporary stay earlier.)
I subscribe to Kanefield, but this hadn't come across my emails yet. I think she mostly posts on Mastedon which I don't h have. I really do appreciate her point of view and easy to understand explanations.chancery wrote: ↑Mon Nov 20, 2023 2:50 pm Teri Kanefield, a very experienced appellate defender, has some of the best commentary on Trump litigation.
Unlike most of the former government attorneys who are popular online, she is not a cheerleader for the prosecution. (Tristan Snell, a former assistant NY Attorney General who had a substantial role in New York State's civil action against Trump University, but little to no experience with criminal prosecution, is about as bad as it gets. I sympathize with his political views, but his analysis and predictions are mostly worthless. Even former federal prosecutors like Andrew Weissmann and Harry Litman, who do have substantial high-level experience with relevant federal white-collar prosecutions, and whose comments are more insightful, sometimes let their understandable disgust for Trump cloud their analysis.)
I don't agree with Kanefield's conclusion that line prosecutors have a "place in the government hierarchy" for purposes of determining that they are First Amendment public figures. The bottom of a hierarchy may be a "place" for some purposes, but I think that the test requires some significant supervisory seniority. But aside from that, her analysis seems strong.
In a disclosure request to Judge Tanya Chutkan in Washington, D.C., on Monday, Trump's lawyers wrote that they want information on undercover agents to show that it was the security forces, not Trump, who could have stopped the Capitol invasion on the day President Joe Biden's election victory was confirmed.
"President Trump is entitled to all information regarding undercover agents and individuals acting at the direction of official authorities at the Capitol on January 6," the lawyers wrote, citing United States v. Zink, in which Trump supporter, Ryan Zink, was found guilty in September of three charges, for filming and encouraging the rioters from within the Capitol building. In the Zink case, the court ruled that the defendant "is certainly right that the identity of a potential undercover actor—assuming any were present at the Capitol on January 6—could be exculpatory evidence that the Government must disclose."
In their submission on Monday, Trump's lawyers wrote that the former president differs from Zink in that he is not claiming that he was led into illegal actions by an undercover agent, but rather that the undercover agents should have controlled the riot.
The presence of undercover agents or informers would "suggest that there were adequate controls in place and that the violence at issue resulted from a failure of those controls and/or failed sting operations rather than any directions from President Trump," the lawyers' submission states.
"It strains credibility to assert that President Trump is not entitled to the production of this information, putting aside, for now, whether such information is admissible at trial, it certainly aids the preparation of President Trump's defense," the submission states, adding that the federal government "must also produce all materials that are inconsistent with the prosecution's new theory that President Trump 'directed' and is 'responsible for the events at the Capitol on January 6.'"
"This includes any materials suggesting that non-parties 'directed' events on January 6 or are otherwise 'responsible'—in whole or in part—for the violence that President Trump sought to prevent," the submission states.
x4
One of former president Donald Trump's current attorneys told special counsel Jack Smith's team that, within days of the Justice Department issuing a subpoena last year for all classified documents at Trump's Mar-a-Lago estate, she "very clearly" warned Trump that if he failed to fully comply -- but then swore he did -- "it's going to be a crime," according to sources familiar with the matter.
Sources said the lawyer, Jennifer Little, told investigators Trump "absolutely" understood the warning, which came during a pivotal meeting at Mar-a-Lago with Trump and another attorney, Evan Corcoran, who had recently joined Trump's legal team.
What Little allegedly told Smith's team earlier this year may shed further light on how Smith came to accuse Trump of knowingly violating the law, saying in his June 9 indictment against Trump that the former president defied a subpoena by hiding more than 100 classified documents from the FBI and even his own legal team, and then having his legal team certify otherwise.
Harry Litman
@harrylitman
DC circuit opinion on immunity, rejecting trumps claim at least pending development on the Fax. This is the big legal development we’ve been awaiting, affecting schedule, civil and criminal trials. It’s very strong, provisional. Landmark development you could say.
https://twitter.com/harrylitman/status/ ... 8490521002With the opinion in the immunity case involving the civil plaintiffs, we can expect Chutkan's immunity decision to follow in short order, and for this reasoning to apply. Very very good development for Smith 1/6 prosecution, including for prospects it be tried before 11/2024.
https://twitter.com/harrylitman/status/ ... 4211037572DC circuit standard: "can alleged actions reasonably be understood as the official actions of an office-holder rather than the unofficial actions of an office-seeker." Reelection campaign activity is NOT within outer perimiter of official responsibilities as President.
https://twitter.com/harrylitman/status/ ... 9719123269Concurrence by Katsas, conservative Trump appointee, affirms principle that when acting as a candidate for re-election or leader of party, he is not in his official capacity. And also that complaint plausibly asserts that's the case here.
https://twitter.com/harrylitman/status/ ... 1627108684The ideologically mixed opinions are styled as rejecting 2 "extreme alternatives"--1. Trump's arg that any speech of matter of public concern is official v 2. Plaintiffs=only speech in furtherance of a presidential power. I.e this will play as a balanced resolution,--> stronger.
https://twitter.com/harrylitman/status/ ... 9167832413To state the obvious, the standard of immunity--and proposition that when acting as a candidate, you're not acting in your official duties as Pres--would be controlling on the criminal allegations at least those growing out of jan 6.
https://twitter.com/harrylitman/status/ ... 7481449833How to distinguish official from private presidential speech--> "objective" inquiry into "context" of speech, & whether "clothed in the trappings of an official function." Can be borderline cases--& again, this is a decision on allegations, not final facts--but seems clear here.
https://twitter.com/harrylitman/status/ ... 0500325747Main reason for "objective" standard (Katsas): "As a general matter, motive-based inquiries are “highly intrusive” and thus inappropriate for scoping out immunity.", even in cases involving plausible
allegations that the President has acted for some
unconstitutional purpose."
https://twitter.com/harrylitman/status/ ... 4039466239Also more than a matter of what President says--can say the same thing at a political rally as at state of the union. idea is that state of the union, since "clothed in the trappings of an official function" would have immunity, rally would not.
https://twitter.com/harrylitman/status/ ... 3939416433Pres's official duties so pervasive that even campaign speech can be official==e.g uses campaign speech to fire Secretary of State. So fact based, contextual inquiry.
In retrospect, Trump blundered by serving up an imprudently broad argument : that he was entitled to immunity "whenever [he] speaks on a matter of public concern."
He's gonna pardon all them tourists, ain't he?MAGA leader Donald Trump re-posted a Truth Social post from an account called @hodgetwins, which called for the arrest of Capitol Police officers defending the lower west terrace tunnel during the Jan 6 insurrection.
The post claims officers in that portion of the Capitol "beat the hell out of innocent J6 protesters" and "should be charged and the protesters should be freed."
Although it's a civil case, the decision is likely to be persuasive for the criminal cases against Trump. The Supreme Court has ruled that former presidents enjoy absolute immunity from civil liability for acts taken in their official capacity. The D.C. Circuit has taken a strong stand against extending a former president's immunity into acts taken and statements made in his personal capacity as a candidate -- notwithstanding that the acts and statements involve matters of public concern that, in a separate context, could also be involved in his official acts.The plaintiffs are Capitol
Police officers and members of Congress who were at the
Capitol that day. They seek recovery for physical injuries and
emotional distress arising from the riot.
No legal principle, case, or historical practice supports the conclusion that a former president is immune from federal criminal prosecution for conduct undertaken during his presidency.
https://ecf.dcd.uscourts.gov/cgi-bin/sh ... cr0257-171MeidasTouch
@MeidasTouch
Judge Chutkan DENIES Trump's Motion to Dismiss in which he argued he had "presidential immunity."
Best line from the order: "Defendant's four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens. "No man in this country," not even the former President, "is so high that he is above the law."
She is wonderful!!!!!!!!
