January 6th legal proceedings and investigations megathread

[Fmr. Gov. NickG]

(2) Is it consciously attempting to overturn an election if individual supporters believe the election was stolen (whether or not it actually was in practice)?
(3) Is it consciously attempting to overturn an election if Trump himself believed the election was stolen (whether or not it actually was in practice)?

It may depend on the exact crime he is charged with, but in many cases it wouldn’t matter what Trump actually believed, but what a “reasonable person” would have believed and would have done in response to that belief.

The reasonable person will weigh all of the following factors before acting:

the foreseeable risk of harm his actions create versus the utility of his actions;
the extent of the risk so created;
the likelihood such risk will actually cause harm to others;
any alternatives of lesser risk, and the costs of those alternatives.[/i]

https://en.wikipedia.org/wiki/Reasonable_person

Do you really believe Trump did all these things?

[Fmr. Gov. NickG]

If we do IRV we don't need primaries at all.

I generally support ranked choice voting, but what you are suggesting would be terrible for presidential elections.   You can't just have everyone voting on dozens of possible candidate of all parties for president at the same time.  Voters don't have the mental space for that.  You need to give them a clear choice between a small number of candidates, and the primary process, for all its flaws, allows that to happen through a gradual process of winnowing the field.

[Fmr. Gov. NickG]

What are the chances that eventually for one of these indictments, Trumps draws an exceptionally anti-MAGA judge who just decides to remand him to custody pending trial?

[Fmr. Gov. NickG]

If you lock him up, forget 1/6, it'll be 1776.

https://www.youtube.com/watch?v=WOSqCjMRXWA

[Fmr. Gov. NickG]

So will the jury consist only of DC residents? If so, it’s more likely than not to include zero Trump voters.

[Fmr. Gov. NickG]

So here’s an interesting question in my mind:
Suppose the election actually -was- stolen.  In this case, would Trump’s actions have been legal?

I think the answer is no…if the election was actually stolen, the remedy is present your evidence of this in court.  It’s not to appoint a slate of electors separate from the state certified slate and convince federal officers to ignore the state certifications, right?

So if this is true, it shouldn’t matter whether Trump knew or believed the election wasn’t stolen.  He’s guilty regardless.

[Fmr. Gov. NickG]

Does this date mean that jury selection begins on March 4, or that jury selection should be completed by March 4 to actually begin opening statements on that day?

[Fmr. Gov. NickG]

Appeals court upholds key provisions of Trump gag order in federal Jan. 6 case

An appeals court largely upheld a gag order limiting former President Trump’s statements as he faces federal prosecution for seeking to block the transfer of power, broadening his ability to attack special counsel Jack Smith while leaving in place limitations on other parties.

The ruling from a three-judge panel of the D.C. Circuit Court of Appeals largely affirms a prior ruling from Judge Tanya Chutkan, who barred Trump from making statements that “target” foreseeable witnesses, court staff and prosecutors.

The appeals court refined that directive, barring Trump from any statements “made with the intent to materially interfere with, or to cause others to materially interfere with” the course of the case.

But it removed Smith from the list of protected court staff, giving Trump free reign to go after a prosecutor he is fond of taunting as “deranged."

https://thehill.com/regulation/court-battles/4350074-appeals-court-upholds-key-provisions-of-trump-gag-order-in-federal-jan-6-case/


Gag order back on but special exemption for Smith explicitly, uggh.

This seems like a very good sign that the Appeals Court will deal very quickly with Trump’s immunity appeal.

[Fmr. Gov. NickG]

So what happens if the Supreme Court denies cert?  Could it still be appealed at the Circuit Court level?

Edit: I'm generally a little unclear about what a denial of cert would mean in this case. Does it mean that the Court is denying Trump's appeal (and this affirming the District Court ruling for the prosecution)? Or simply that they are denying the prosecution's petition to consider the issue now and will allow the appeal to proceed through the Circuit Court as usual?

[Fmr. Gov. NickG]

https://twitter.com/MuellerSheWrote/status/1734343076691521870

I’m not sure what the Presidents in parens are in reference to.  Pan and Childs were both appointed to the DC Circuit last year by Biden.  Henderson is a Republican appointed in 1990 by GHW Bush, and is the longest serving active justice on the Court by over 20 years. She’s also been very favorable toward Trump in past rulings, though she’ll obviously be in the minority here.

[Fmr. Gov. NickG]

Haven’t really seen this commented on anywhere yet, but I found a link to his lawyer’s response to the SCOTUS cert petition filed todya:

https://www.supremecourt.gov/DocketPDF/23/23-624/293865/20231220140543301_23-624%20-%20U.S.%20v.%20Trump%20-%20Brief%20in%20Opposition%20to%20Petition%20for%20Certiorari%20Before%20Judgment%20-%20Filed.pdf

[Fmr. Gov. NickG]

This story is from a few days ago, but former Nebreaska Congressman Jeff Fortenberry had his conviction for lying to FBI agents overturned on appeal:

https://www.politico.com/news/2023/12/26/appeals-court-reverses-conviction-against-former-rep-jeff-fortenberry-00133213

Fortenberrry had to resign from Congress after being convicted.  But the verdict was overturned because the court said the trial was held in the wrong venue.  He shouldn’t have been tried in California when the lying took place in Washington, DC.

This broached the question to me: if an appeal that a trial is being held in the wrong place will only be heard after conviction (and after Fortenberry already resigned), why is Trump’s appeal that he is immune being heard before the trial even takes place?  This seems very inconsistent.

[Fmr. Gov. NickG]

Trump's immunity and double jeopardy appeals are in a privileged class that can be heard pretrial. Venue is not.

I guess it just seems like if there exists privileged class of appeals to be heard pretrial, holding the trial in the correct venue should be in that class. 

Venue seems like much clearer instance where the correct ruling can be made based on the law alone separate from any facts that may be revealed during the trial.  By contrast, part of Trump’s immunity claim is that his actions were within the scope of his presidential duties. which seems like a fact-based determination that should be heard at trial before being adjudicated.

[Fmr. Gov. NickG]

Opinion: This surprise argument could derail Trump's effort to delay the Jan. 6 trial

As all eyes watched every word filed by Donald Trump and federal prosecutors ahead of next week’s crucial arguments on immunity, a third party slipped in the side door with a brief that may dramatically foil the former president’s efforts to leverage the issue for maximum delay.

The watchdog organization American Oversight, which is not a party to the case, successfully petitioned the U.S. Court of Appeals for the D.C. Circuit to accept its friend-of-the-court brief on the ground that it provides a “unique perspective.”

Indeed it does. The brief makes the apparently compelling argument that the court shouldn’t be hearing this appeal at all because it lacks jurisdiction — that is, the power to consider it in the first place. If the court agrees, it would mean dismissing the appeal and returning the case to U.S. District Judge Tanya Chutkan, abruptly aborting Trump’s best opportunity to delay the federal Jan. 6 trial.

https://www.msn.com/en-us/news/opinion/opinion-this-surprise-argument-could-derail-trump-s-effort-to-delay-the-jan-6-trial/ar-AA1mqH16

Yeah, this is basically what I’m saying in my posts above.  Trump’s job-based immunity claim is at least in part a factual question that should be first adjudicated at trial.

He is also making a double jeopardy argument which I guess is supposed to be heard beford trial, but this particular part of the appeal is almost certainly the stupidest of all of them.

[Fmr. Gov. NickG]

It's pretty sickening, though unsurprising, that Trump may get away with his delay tactics.

This is really Biden and Merrick Garland’s fault.  They should have appointed a special prosecutor to get this moving on their first day in office.  Waiting two years to move on this is an enormous failure on the part of Biden’s administration.

[Fmr. Gov. NickG]

OK, so why didn’t Garland even appoint a special prosecutor until more than two years after the election? Trump should have been arrested the day after the phone call with Raffensberger was released.

[Fmr. Gov. NickG]

Would the delay in the Circuit Court opinion seem to indicate that Henderson is siding with the majority?  If she was going to dissent, I'd think she wouldn't be able to assign (and thus delay) the majority opinion.

[Fmr. Gov. NickG]

The alternate mediaverse that most Republicans exist in has convinced them (of course) that Trump is being treated unfairly in all his court cases:

Most Republicans in new poll believe Trump’s legal cases are being handled ‘unfairly’

The federal cases at least -are- obviously being handled unfairly, in the sense that Republican judges are deliberately delaying them to an extent that would never be done with another defendant.

[Fmr. Gov. NickG]

Trump will obviously appeal, and Alito and Thomas will obviously rule in his favor. Roberts and the liberals will rule against him. So how do the Trump judges rule? We’d only need 1 of them.

I really can’t imagine SCOTUS would ultimately rule in Trump’s favor in any substantial way.  The much bigger issue is that you only need 4 justices to agree to grant cert and potentially push off the ruling until after the election.

[Fmr. Gov. NickG]

Would the delay in the Circuit Court opinion seem to indicate that Henderson is siding with the majority?  If she was going to dissent, I'd think she wouldn't be able to assign (and thus delay) the majority opinion.

I think today's decision would suggest that my speculation last week was correct, especially given the amount of language in the opinion that was likely written by Henderson.

[Fmr. Gov. NickG]

I don't know how the Supreme Court will rule, but I don't expect a decision until June. Lets be honest, like Dobbs and students loans the SC always wait until the last second

True, though even June is fine. I would imagine if that was the case, the trial would probably be scheduled then for something like August and easily finish before the election.

If the trial is scheduled for August, Trump could appeal and say any verdict would likely come in October and affect the election. This appeal request has worked before

Could appeal what though? Trump only has one appeal left - SCOTUS. SCOTUS should rule either way in the next few weeks. They'll either not take it up, so then he has no appeals left and it goes forward. But even if SCOTUS waits to rule until June, say they rule against him, and then again that's it. There's nothing else to appeal once SCOTUS rules here.

If the Supreme Court rules in late June and the trial is scheduled for August, Trump's lawyers can claim that the trial and verdict will affect voting. They will than ask for a postponement until after the election. Once they ask for that, it goes to appeals court than possibly the Supreme Court

This is exactly Trump's plan right now

Goes to who though? If the Supreme Court rules, that's it. There's no one to appeal to at that point. There's no one to ask for a postponement.

We don't even know if the Supreme Court will rule on Trump being immune, throwing out the case.

I don't think they will. They may not consider it at all.

If they do consider the case, I doubt will get a decision soon. It'll be towards June.

If the Supreme Court rules that Trump isn't immune yet waits until June, than the trial starts August.

At that point, Trump's lawyers will argue that the trial should be postponed because its so close to the election. Once again the argument will go to the court of appeals and than possibly the Supreme Court.

Trump's tactic is too delay and delay. His lawyers know its unlikely for the case to be thrown out because of the presidential immunity argument. But delaying has already worked in Florida for the document case

I get what you're saying and I could be wrong, but what I'm saying is there is no one to appeal to. You can't just appeal again once SCOTUS has ruled. The SCOTUS ruling is the final ruling here. You can't just do a random appeal to the court of appeals and SCOTUS again just because *you* want it delayed. The SCOTUS ruling is the end of the line.

Why?

If the Supreme Court rules that Trump isn't immune, that has nothing to do with election interference and thus a separate case for the court to hear

Can you cite a specific criminal case that has been delayed by a court decision on the grounds of "election interference"?

[Fmr. Gov. NickG]

I definitely hope SCOTUS will quickly deny cert.  But I feel like most legal experts also believed they would take the case under expedited review back in December.

[Fmr. Gov. NickG]

I don't imagine they stay the ruling; i believe they'll just say they're not touching it:

https://twitter.com/steve_vladeck/status/1757162906079072454

SCOTUS actually gave Jack Smith a whole week to respond to this (until Feb 20).  Seem like they may already be slow-walking things.

[Fmr. Gov. NickG]

Possibly, but as soon as he responds they could rule at any point, if he gets it in tomorrow they can discuss in conference on Friday. He probably hasn't responded because there's not much point until Friday.

Edit: typo and he's responded now, says SCOTUS should not stay the case.

Asks if they must hear the case that they hear and decide the case in March. (Although I think Trump has not asked them to take the case yet, just to stay the trial while he appeals en banc.) Also argues strenuously and at length why they should not hear the case at all.

SCOTUS can treat the application for a stay as an implicit application for cert and immediately grant cert if they want.  Apparently they’ve already done this several times in the past year.

[Fmr. Gov. NickG]

It does seem like there should be a rule that if a Court doesn't issue a stay within a certain amount of time, the ruling automatically goes into effect.