Opinion Judge Chutkan blows the whistle on Trump’s stay-out-of-jail plan
If Trump wins the election, the scheme goes, he’ll pardon himself, end the prosecutions and/or claim presidential immunity. It initially might have seemed plausible that he could run out the clock. But then he ran into a no-nonsense judge in a no-nonsense district who blew the whistle on the scheme.
At a Friday hearing in D.C., regarding a protective order for discovery materials, U.S. District Judge Tanya S. Chutkan was careful to prevent prosecutorial overreach and protect Trump’s First Amendment rights in declining to include “nonsensitive” discovery materials in her protective order. (That’s less than meets the eye, because all witness interviews and grand jury material probably will be deemed sensitive.) And though she sided with the prosecution in refusing to let Trump share materials with anyone deemed a “consultant,” the big news was her reaffirmation that she was not going to let his campaign supersede the integrity of the justice system.
“I caution you and your client to take special care about your public statements about this case,” she told Trump lawyer John Lauro. “I will take whatever measures are necessary to safeguard the integrity of these proceedings.” If that wasn’t clear enough, she warned against “conflating what your client needs to do to defend himself and what your client wants to do politically. Your client’s defense is supposed to happen in this courtroom, not on the internet.”
In a perfect distillation of the principle that Trump gets treated like all other defendants, Chutkan acknowledged, “Mr. Trump, like every American, has a First Amendment right to free speech, but that right is not absolute. In a criminal case such as this one, the defendant’s free speech is subject to the rules.” She added that without a protective order, “a party could release information that could taint the jury pool, intimidate witnesses or others involved in some aspect of the case, or otherwise interfere with the process of justice.” Chutkan stressed, “I intend to keep politics out of this.”
No one could have missed Chutkan’s critical admonition that the Trump campaign must “yield to the orderly administration of justice.” In other words: “If that means that he can’t say exactly what he wants to say about people who may be witnesses in this case, that’s how it’s going to have to be.”
And finally, she took direct aim at his discredit/delay strategy: “The more a party makes inflammatory statements … the greater the urgency will be that we proceed to trial quickly.” Whoops.
Bulldog former prosecutor Andrew Weissmann gave her high marks. “Judge Chutkan today letter perfect in substance, backbone and judicial temperament,” he tweeted. “Her experience really informed her balance but firm approach with both sides.” Likewise, former prosecutor Joyce White Vance observed that this is “how experienced judges do it.”
To recap, Chutkan will take a very close look at all of Trump’s public statements to make sure he is neither intimidating witnesses nor interfering with the sound administration of justice; she doesn’t care about the primary campaign schedule; and she won’t put up with gratuitous delays. Though she might not accept the prosecution’s suggestion for a January start date, the trial could be underway in the first quarter of 2024.
As if to put an exclamation point on Chutkan’s warning, later Friday, U.S. District Judge Lewis A. Kaplan ordered FTX founder Sam Bankman-Fried jailed for sharing his ex-girlfriend’s diary with a New York Times reporter. “Prosecutors have characterized the leak as an attempt at witness intimidation, and described the July 20 article as the tipping point in their push to revoke Bankman-Fried’s bail,” The Post reported. “Both the New York Times and the Reporters Committee for Freedom of the Press advocated against jailing Bankman-Fried, filing letters that argued the detention would violate Bankman-Fried’s freedom of speech.” But defendants don’t enjoy unfettered First Amendment rights while out on bail. That ruling should remind Trump that criminal defendants face serious consequences for these sorts of stunts. Whether Trump can control himself remains to be seen.
Several points deserve emphasis. First, though an early 2024 D.C. trial date could conflict with Manhattan District Attorney Alvin Bragg’s March date for trying Trump’s state business document falsification case, Bragg indicated he would give way “in the interests of justice” to other trials. Second, it hardly matters now if U.S. District Judge Aileen Cannon indulges Trump in his efforts to delay his classified-documents trial; special counsel Jack Smith’s election interference case in all likelihood will be well underway or done before Cannon puts an end to Trump’s stalling. Third, if a D.C. trial is underway, for the sake of argument, at the beginning of February, it might be over by Super Tuesday on March 5; if the trial starts a bit later, Trump would enter Super Tuesday with a trial hanging over his head.
None of this means Republicans will send Trump packing. Their delusional belief in his innocence, the other candidates’ fear of antagonizing the base, the rotten performance of Florida Gov. Ron DeSantis and the MAGA cult’s inability to admit they’ve been wrong all along might well result in Trump’s nomination, regardless of when the Jan. 6, 2021, or any other trial finishes.
If it sounds unbelievable that the GOP would nominate a convicted or nearly convicted Trump, that would just be par for the course for a party that excused his alleged attempt to extort Ukraine, refused to impeach him for Jan. 6, railed at his prosecutors, attacked the FBI, excused snatching classified documents and insisted an indictment for allegedly attempting to overthrow our democracy was no big deal.
It turns out that when you make horrible judgments and spread preposterous lies, you wind up in an untenable fix all of your own making.
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