Federal prosecution of Donald Trump (election obstruction case)

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This article is about 2020 election obstruction prosecution. For other prosecutions of Donald Trump, see Indictments against Donald Trump.

United States v. Trump
Seal of the U.S. District Court for the District of Columbia
CourtUnited States District Court for the District of Columbia
Full case nameUnited States of America v. Donald J. Trump
Docket nos.1:23-cr-00257-TSC
Charge
Court membership
Judge(s) sittingTanya S. Chutkan (District Judge)
This article is part of
a series about
Donald Trump
Business and personal
45th President of the United States
Tenure
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Impeachments
Prosecutions
Interactions involving Russia
COVID-19 pandemic

Donald Trump's signature

Seal of the President of the United States
January 6 United
States Capitol attack
A crowd of attackers amid a cloud of tear gas outside the Capitol (top), and an attacker inside the Capitol throws a metal trash can at a police officer (bottom)
Timeline • Planning
Background
2020 presidential election
and other causes
Related groups and persons
Participants
Notable people
Organizations
Law enforcement response
Aftermath
Biden inauguration
Investigations and charges
Corporate actions
Reactions
Impeachment and 2024 presidential election

United States of America v. Donald J. Trump is a pending federal criminal case against Donald Trump, the president of the United States from 2017 to 2021, regarding his alleged participation in attempts to overturn the 2020 U.S. presidential election including his involvement in the January 6 Capitol attack.

Trump questioned the results of the 2020 presidential election, claiming that election fraud had occurred through mail-in ballots, voting machine irregularities, "dead voters", and other irregularities. He also directly attempted to overturn the results of the election through a plot in which pro-Trump slates of fake electors would be created. Trump pressured then-vice president Mike Pence to count the fake electors instead of the electors certified by state legislators. The Department of Justice opened an investigation in January 2022 into the plot, expanding it to encompass January 6. In November 2022, attorney general Merrick Garland appointed Jack Smith to lead a special counsel investigation encompassing the investigations into attempts to overturn the election and Trump's handling of government documents.

On August 1, 2023, a grand jury indicted Trump in the District of Columbia U.S. District Court on four charges for his conduct following the 2020 presidential election through the January 6 Capitol attack: conspiracy to defraud the United States under Title 18 of the United States Code, obstructing an official proceeding and conspiracy to obstruct an official proceeding under the Sarbanes–Oxley Act of 2002, and conspiracy against rights under the Enforcement Act of 1870.[1][2][3] The indictment mentioned six unnamed co-conspirators. It is Trump's third indictment and the first indictment against a U.S. president concerning actions while in office.[4] Trump appeared at an arraignment on August 3, where he pleaded not guilty.[5] The charge with the longest sentence carries a maximum of 20 years in prison.[6]

On February 2, 2024, Judge Tanya Chutkan said she would not schedule a trial until the DC Circuit Court of Appeals decides whether Trump is immune from prosecution.[7] On February 6, the a panel of the DC Circuit Court of Appeals unanimously ruled that Trump is not immune.[8]

Background[edit]

Further information: Attempts to overturn the 2020 United States presidential election § Background

Accusations of electoral fraud and attempts to overturn the election[edit]

Throughout his 2016 presidential campaign, Trump repeatedly sowed doubt on the election certification process. Campaigning in Colorado, Trump claimed without evidence that the Democratic Party "[rigged] the election at polling booths".[9] In October 2016, Trump claimed through a series of tweets that widespread voter fraud would occur in the 2016 presidential election. These statements were echoed by Rudy Giuliani, Trump's legal advisor.[10] Trump continued expressing these sentiments into the 2020 presidential election; for months, he prepared arguments in the event of his loss, primarily relating to mail-in ballots.[11] As early as August 2020, he enlisted conservative activist and lawyer Cleta Mitchell to help overturn the election.[12] The Department of Homeland Security warned that Russia was amplifying claims of fraud occurring in mail-in voting to intentionally sow distrust in the voting process as a whole.[13] Two days before Election Day, Trump told reporters that he would be "going in with [his] lawyers" as soon as the election was over.[14]

Bolstered by pro-Trump pundits and perceived strong turnouts at rallies, the Trump campaign was confident that they were going to win the election. On Election Day, preliminary surveys at polling places showed Trump in the lead as his supporters were more likely to turn out in person amid the COVID-19 pandemic, but his lead diminished as mail-in ballots were counted. Following Trump's final campaign event in Grand Rapids, Michigan, Trump's son Eric wagered that he would win at least 322 electoral votes.[15] At the behest of Giuliani, Trump declared in a 2 a.m. election night speech in the East Room that he had won the election and that the counts being reported were fraudulent.[16] As ballots were being counted, campaign data expert Matt Oczkowski bluntly informed Trump that he was going to lose the election. White House Counsel Pat Cipollone told him that invalidating the results of the election would be a "murder-suicide pact".[17] Under then-attorney general William Barr, the Department of Justice failed to find widespread voter fraud in the election.[18] Former speaker of the House Newt Gingrich predicted that Trump voters would erupt in "rage",[19] a sentiment shared by House Republican leader Kevin McCarthy, who told Laura Ingraham on The Ingraham Angle that Republicans should not "be silent about this".[20]

Trump and several co-conspirators repeatedly sought to overturn the results of the election. The Department of Justice investigation into these attempts focused on the implementation of the Trump fake electors plot, in which Trump and his allies would draft allegedly fraudulent certificates of ascertainment affirming Trump as the winner. The effort to write these documents and persuade Republican officials to sign them was performed by Trump's lawyers, including Giuliani and John Eastman, who claimed that irregularities in the election had occurred and proposed that an "alternate" slate of electors should be established while they gathered evidence. Although dozens of these electors were installed and affirmed Trump as the winner, the seven state legislatures targeted in the plot—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin—certified Biden's victory, although Pennsylvania and New Mexico agreed to consider Trump the winner if he succeeded in the many lawsuits challenging the election. The scheme involved sending the fake electoral slates to vice president Mike Pence, pressuring him to count the fake votes. Alternatively, Trump allies posited that Pence could consider the election "defective" under the Electoral Count Act and allow the House of Representatives to decide the outcome.[21]

During the two months following the election, Trump made multiple phone calls to Republican officials in states that had narrowly been won by Biden, asking them to reverse the results and give the victory to him. One such call was to Georgia secretary of state Brad Raffensperger, asking him to "find 11,780 votes". Raffensperger recorded the call and subsequently released it to the public.[22] Both Trump and Giuliani called Rusty Bowers, the speaker of the Arizona House of Representatives, asking him to look into claims of fraud, but he declined to do so without evidence. John Eastman also called Bowers on January 4 asking him to undo the state's certification of Biden's win, but he refused.[23] Trump and his attorneys, as well as Republican members of Congress, also called or met with state officials in Michigan and Pennsylvania, urging them to report that Trump had actually won their states.[24]

January 6 Capitol attack and investigations[edit]

Main article: January 6 United States Capitol attack
See also: Criminal proceedings in the January 6 United States Capitol attack

On December 19, 2020, six weeks following his election loss, Trump urged his followers on Twitter to protest in Washington, D.C., on January 6, the day Congress was set to certify the results of the election, writing, "Be there, will be wild!" Over the course of the following weeks, Trump would repeat the January 6 date. Militant organizations such as the Proud Boys and groups affiliated with the conspiracy theory QAnon formulated logistical plans to gather at the United States Capitol. The Red-State Secession Facebook page encouraged its followers to post the addresses of its "enemies". Trump continued to repeat false claims about the election in multiple states leading up to January 6, including Georgia, Pennsylvania, Michigan, Nevada, and Arizona.[25] On the morning of January 6, Trump gave a speech in the Ellipse, an elliptical park near the White House, and encouraged his followers to walk down to Pennsylvania Avenue to incite within Republicans lawmakers the "kind of pride and boldness that they need to take back our country". Provoked by Trump, the mob of Trump supporters stormed the Capitol.[26]

The January 6 Capitol attack resulted in hundreds of criminal proceedings.[27] The House of Representatives voted to impeach Trump for a second time on January 13.[28] He was acquitted by the Senate on February 13.[29] The House of Representatives voted to create a select committee to investigate the attack in June 2021.[30] Ahead of its final report, the committee voted to accuse Trump of the four charges.[31] and referred him to the Department of Justice.[32] Two of the four charges brought by the Select Committee were brought against him in the indictment, with the charges of "inciting or assisting those in an insurrection" (18 U.S.C. § 2383) notably not in the indictment nor "Conspiracy to Make a False Statement" (18 U.S.C. §§ 371, 1001). In a CNN interview in January 2022, deputy attorney general Lisa Monaco stated that the Department of Justice would investigate the Trump fake electors plot.[33] By March 2022, the Department of Justice had opened an investigation into the events of January 6 and Trump's attempts to overturn the election.[34] The Department of Justice began obtaining White House phone records in April in connection with the January 6 investigation,[35] and a federal grand jury issued subpoenas to Trump's lawyers in connection with the fake electors plot in May.[36] The Washington Post reported in July that the Department of Justice was investigating Trump's actions on January 6.[37]

The January 6 investigation was overseen by Thomas Windom, an obscure federal prosecutor.[38] On November 18, 2022, attorney general Merrick Garland appointed Jack Smith to serve as special counsel for the January 6 investigation and the FBI investigation into Donald Trump's handling of government documents.[39] Smith intensified both investigations ahead of increased efforts by Trump to focus on his 2024 presidential campaign.[40] In June 2023, Trump was indicted in connection with the classified documents investigation.[41] Leading up to Trump's indictment in the January 6 investigation, prosecutors continued investigating several strands, including through hundreds of documents provided by former New York Police Department commissioner Bernard Kerik.[42] On July 18, Trump was given a target letter.[43] The following week, his lawyers met with prosecutors, signaling the investigation was nearly complete.[44]

Indictment and arraignment[edit]

The indictment
Special Counsel Jack Smith delivers remarks announcing the indictment.

The indictment was unsealed on August 1, 2023. A grand jury in the U.S. District Court for the District of Columbia indicted Trump on four charges: conspiracy to defraud the United States, obstructing an official proceeding, conspiring to do so, and conspiracy against rights.[45][46] D.C. district judge Tanya S. Chutkan was randomly assigned to hear the case.[47]

According to the indictment, on December 8, 2020, a senior campaign advisor admitted that "our research and campaign legal team can't back up any of the claims ... It's tough to own any of this when it's all just conspiracy shit beamed down from the mothership."[48] On January 1, Trump learned that Mike Pence did not believe the vice president could reject electoral votes. Trump called Pence and told him, "You're too honest."[49] On January 3, it is alleged that White House deputy counsel Patrick F. Philbin privately said that if Trump held onto power, there would be "riots in every major city in the United States", to which "Co-conspirator No. 4" (likely Jeffrey Clark) replied "That's why there's an Insurrection Act",[50] implying that Trump could command the military to keep himself in power.[51] The indictment also described a previously unreported discussion between Trump and White House Counsel Pat Cipollone, in which Cipollone advised Trump, hours after the Capitol riot started, to drop his objections to the election. Trump refused.[45]

Trump appeared before magistrate judge Moxila A. Upadhyaya at the E. Barrett Prettyman United States Courthouse in Washington, D.C., on August 3. Smith was present at the arraignment,[52] as were Trump lawyer Evan Corcoran and chief judge James Boasberg.[53] In the courtroom, Trump was joined by lawyers Todd Blanche and John Lauro; prosecutors Thomas Windom and Molly Gaston were joined by a special agent from the Federal Bureau of Investigation. Trump pleaded not guilty to each count, and prosecutors confirmed they would not seek pre-trial detention.[53]

Co-conspirators[edit]

The indictment references six co-conspirators. Although they were not named in the indictment, news agencies reported their likely identities based on public information. The indictment does not charge them.[54]

  • Co-conspirator No. 1: Trump lawyer Rudy Giuliani, as confirmed by his lawyer, Robert Costello, who claimed the indictment "eviscerates the First Amendment".[45]
  • Co-conspirator No. 2: Trump lawyer John Eastman, as confirmed by his lawyer, Harvey Silverglate, who claimed Eastman would be exonerated.[55]
  • Co-conspirator No. 3: Trump lawyer Sidney Powell. CNN noted that the dates of a "lawsuit against the Governor of Georgia" mentioned in the indictment align with a lawsuit filed by Powell.[56] On October 19, Powell pleaded guilty in the Georgia election racketeering prosecution (in which Trump is named as a co-defendant) in an agreement with prosecutors to testify against other defendants in future trials.[57][58]
  • Co-conspirator No. 4: Trump lawyer Jeffrey Clark. CNN matched quotes of an email in the indictment with quotes from a Senate report.[56]
  • Co-conspirator No. 5: Trump lawyer Kenneth Chesebro. CNN referred to information released by the House Select Committee on the January 6 Attack.[56][59] On October 20, Chesebro pleaded guilty in the Georgia election racketeering prosecution in exchange for testimony at future trials.[60][61]
  • Co-conspirator No. 6: A "political consultant" who allegedly named attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin "who could assist in the fraudulent elector effort". On December 13, 2020, this person joined a phone call with Rudy Giuliani and a senior campaign advisor for Trump.[62]
Two United States Secret Service agents patrol in front of the courthouse before the arraignment.

Pretrial proceedings[edit]

Timetable[edit]

In August 2023, Chutkan set trial for March 4, 2024.[63] This was close to federal prosecutors' proposal of January 2, 2024, whereas Trump's team had suggested April 2026.[64]

Originally, all pre-trial motions were due by October 9. On September 28, Trump's attorneys requested a 60-day extension.[65][66] On October 6, Chutkan extended the filing deadline for motions to dismiss and other dispositive motions (except motions in limine and motions to suppress) until October 23.[67]

On December 7, Trump asked the DC Circuit Court of Appeals to decide whether he is immune from prosecution. Chutkan paused deadlines in the case.[68] On February 2, 2024, Chutkan issued an order acknowledging that the trial would have to be postponed.[69] (Over the previous week, she had already scheduled other trials for March and April.)[68] She said she would not set a new date for Trump's trial until the appeals court ruled on the question of presidential immunity.[69]

Protective orders and security measures[edit]

On August 4 and 5, the special counsel filed motions asking the court to restrict Trump from making public statements about the case and to impose a protective order on Trump and his attorneys to prevent them from revealing evidence (as they noted Trump has done in other cases). In particular, they cited social media posts on August 4 and 5 in which Trump threatened to retaliate against anyone who "comes after" him and called Pence "delusional". The Trump campaign characterized this as political speech that should be allowable.[70][71] When Chutkan would not grant the Trump team's request for an extra three days to respond, Trump attacked her on social media, demanding that she be removed from the case and that the case be moved out of the District of Columbia.[72] On August 7, Trump's attorneys requested a less restrictive order that would "shield only genuinely sensitive materials from public view", to which prosecutors replied that Trump sought "to try this case in the media rather than in the courtroom".[73] Chutkan scheduled a hearing for August 11.[74]

On August 8, Trump insisted he would continue to speak publicly about the case.[75] On August 10, Chutkan was spotted with the protection of U.S. Marshals, revealing an apparently increased level of security.[76] A Texas woman was charged the next week with leaving Chutkan a voicemail with racial and gender slurs in which she threatened: "Hey you stupid slave nigger ... If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, bitch ... You will be targeted personally, publicly, your family, all of it."[77][78][a] At the August 11 hearing, Chutkan issued a less broad protective order than what was sought by prosecutors, who wanted to lock down all evidence turned over in discovery. The protective order allowed Trump to access certain non-sensitive information. She admonished Trump's attorneys that inflammatory public remarks by the former president would cause her to take measures to expedite the trial and prevent potential witness tampering and jury pool tainting. She emphasized that Trump's status as a criminal defendant had priority over his free speech as a political candidate.[81][82][83]

Chutkan ruled Trump could review materials alone, but only if his attorneys ensured he did not have any device that could copy them. A prosecutor told the court that once the protective order was in place, the special counsel expected to provide the defense about 11.6 million pages or files of materials by the end of August.[84] Court documents released on September 15 showed the special counsel previously asked Judge Chutkan in sealed briefs to impose a "narrowly tailored" gag order on Trump, asserting that since his indictment he "has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors and prospective witnesses."[85] Smith filed another brief on September 29 regarding more recent derogatory remarks Trump had made about Brad Raffensperger, William Barr, and former Chairman of the Joint Chiefs of Staff Mark Milley, all of whom were identified as witnesses in the Trump indictment. Trump had on September 22 suggested that Milley should be executed for treason. The brief asserted, "No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed. This defendant should not be, either."[86][87]

On October 16, following a hearing, Chutkan granted a limited gag order.[88][89][90] The gag order prohibits all parties from making public statements targeting Jack Smith or his staff, the defense counsel or their staff, the judge or court personnel, and any potential witnesses or the substance of witness testimony with smears, intimidation, or harassment.[91][92][93] The gag order does not prohibit Trump from making statements criticizing the Biden administration, the Justice Department, the District of Columbia, other presidential candidates and their political platforms, and the conduct of the trial as being unfair or politically motivated.[91][92][93][90] Trump's attorneys filed an appeal of the gag order the next day that claimed that the order violated the Freedom of Speech Clause of the 1st Amendment,[94][95] and Chutkan issued a stay of the order on October 20.[96][97][98] On October 25, the prosecution filed a reply to the stay order that urged that the gag order be reinstated.[99][100] On the same day, the American Civil Liberties Union filed an amicus brief against the gag order that argued that it violated the 1st Amendment.[101]

Chutkan granted the prosecution's request on October 29, stating in her ruling that "First Amendment rights of participants in criminal proceedings ... yield, when necessary, to the orderly administration of justice—a principle reflected in Supreme Court precedent", and citing Gentile v. State Bar of Nevada (1991), that "contrary to Defendant's argument, the right to a fair trial is not his alone, but belongs also to the government and the public."[102][103][104]

On November 2, Trump's attorneys appealed Chutkan's reinstatement of the gag order, asking the U.S. District of Columbia Circuit Court of Appeals to stay the gag order during the appeal.[105][106] The next day, the court granted the pause and scheduled a hearing.[107] On November 14, the prosecution's filing urged that the gag order be upheld.[108] At the November 20 hearing, a three-judge panel (with Brad Garcia, Patricia Millett, and Cornelia Pillard presiding) suggested that it might limit the scope of the gag order. It noted Supreme Court precedent suggesting that, in balancing the rights to freedom of speech and a fair trial, protecting the integrity of criminal procedure outweighs free speech rights.[109][110][111] On November 23, the prosecution's filing urged reinstatement of the gag order, citing a document that compiled hundreds of voicemails containing threats and harassment of presiding New York State Unified Court System Judge Arthur Engoron in the New York civil investigation of The Trump Organization;[112] the next day, the defense replied, claiming that the evidence the prosecution cited was irrelevant.[113]

On December 8, the three-judge panel on the appeals court mostly upheld the gag order. The court ruled that Trump cannot speak about prosecutors, court staff or their families. However, Trump may speak about witnesses as long as he doesn't speak specifically about their participation in the court case. He's also free to speak about special counsel Jack Smith, President Joe Biden, and the Justice Department, and he's allowed to say that the charges are "politically motivated".[114] On December 18, Trump asked the court to reconsider its decision;[115] on January 23, the full 11-member court said it would not.[116] (Trump may still appeal to the U.S. Supreme Court, as previously indicated.)[105]

On January 7, 2024, Chutkan's home was swatted (i.e., someone called in a false report of a violent crime to prompt a police response).[117]

Jury selection and witnesses[edit]

On October 10, prosecutors recommended that the screening of potential jurors begin in early February. Acknowledging that this process will involve revealing jurors' identities to the legal teams, prosecutors recommended prohibiting attorneys from "friending" or "following" the social media accounts of potential jurors.[118] On November 2, Chutkan ruled that jury selection would begin on February 9 and ordered that the parties not share any jury pool research with any other legal entity (such as Trump's presidential campaign) or publicly disclose the identities of prospective jurors.[119][120]

On October 24, ABC News and The Guardian reported that anonymous sources have stated that Trump administration White House Chief of Staff Mark Meadows has received legal immunity from Jack Smith in exchange for testimony under oath and has testified before the grand jury.[121][122] The next day, CBS News reported that anonymous sources have stated that Meadows is cooperating with prosecutors and has testified before the grand jury but did not state that Meadows has received legal immunity, while Meadows' attorney stated to CBS News that the ABC News report was "largely inaccurate".[123] In their October 25 reply to the gag order stay ruling, the prosecution did not address the veracity of the ABC News report and referred to Trump's October 24 Truth Social post about the news report as "an unmistakable and threatening message to a foreseeable witness in this case".[99][100]

Evidence[edit]

In two court filings in late November 2023, Trump's lawyers presented possible defenses. They blamed foreign governments, arguing that "President Trump and others acted in good faith" based on falsehoods in "covert foreign disinformation campaigns relating to the 2020 election". They asked the court to consider the U.S. attorney's office in Washington, D.C., as well as other agencies, as part of the prosecution team. (Doing so would slow down the case by requiring those agencies to submit information to the court and portray the indictment as politically motivated.) Trump's team further complained that some witnesses for the prosecution may have anti-Trump "political bias".[124]

On December 5, 2023, the government alleged in a court filing that Trump had "sent" his supporters to the Capitol. The government said it would submit evidence to demonstrate Trump's "post-conspiracy embrace of particularly violent and notorious rioters", indicating his "motive and intent".[125][126]

In a December 5 court filing, Smith prosecutors asserted they had evidence in election day text messages between a Trump campaign employee, who is an unindicted co-conspirator in the case, and a campaign attorney in Detroit. Prosecutors asserted that Trump and his co-conspirators knew Biden was taking the lead in Michigan results and sought to subvert them, with the campaign employee encouraging "rioting and other methods of obstruction". Prosecutors alleged that at the time of the text messages, "a large number of untrained individuals flooded the Detroit [ballot counting facility] and began making illegitimate and aggressive challenges to the vote count."[127]

Immunity dispute[edit]

Background[edit]

See also: Thompson v. Trump

Previously, in February 2022, District of Columbia U.S. District Court Judge Amit Mehta had ruled that presidential immunity did not shield Trump from civil lawsuits.[128] Mehta allowed U.S. Representatives Bennie Thompson and Eric Swalwell and two U.S. Capitol Police officers to sue Trump for incitement of the January 6 Capitol attack.[129][130][b] Though Trump swiftly appealed, a panel of the U.S. Court of Appeals for the District of Columbia Circuit took nearly two years to uphold Mehta's ruling.[131][132] On December 1, 2023, the panel (with Judges Gregory G. Katsas, Judith W. Rogers, and Sri Srinivasan presiding) said Trump was not immune from these lawsuits. Because his January 6 speech was a campaign event, he had acted "as an office-seeker not office-holder", and his actions did not fall within the "outer perimeter" standard for presidential immunity established in Nixon v. Fitzgerald (1982).[133][134][c]

District court[edit]

On October 5, 2023, Trump's attorneys filed a motion in the federal prosecution case to dismiss the indictment. Trump's team similarly cited presidential immunity under Nixon v. Fitzgerald.[135][136][137] On December 1 (the day the Circuit Court of Appeals panel upheld a ruling that Trump was not immune from civil lawsuits), Chutkan rejected the October 5 motion to dismiss under presidential immunity and the October 23 motion to dismiss under the Freedom of Speech Clause, the Double Jeopardy Clause, and the Due Process Clause.[138][139]

Appeals court[edit]

On December 7, Trump filed notice that he planned to appeal Chutkan's ruling. An appeal could delay the trial that had been scheduled to start in March 2024.[140]

An appeals court was due to hear the immunity dispute. On December 11, the special counsel petitioned the U.S. Supreme Court to skip the appeals court and resolve the immunity dispute on an expedited basis. The rare step was an effort to keep the trial on schedule. Within hours, the Supreme Court said it would consider whether to accept the case on an expedited timeline.[141][142] On December 13, Chutkan paused all deadlines in the case, including the upcoming trial itself, so the immunity dispute could be resolved first. The gag order remained in effect.[143] On December 20, Trump's deadline to file a response with the Supreme Court, his lawyers complained that the special counsel was asking to "bypass ... ordinary procedures ...and rush to decide the issues with reckless abandon". Trump's team asked the Supreme Court to reject the expedited timeline and allow the appeals court to consider the case first.[144][145] On December 22, the Supreme Court denied the special counsel's request, leaving the case to the appeals court.[146]

After Chutkan stayed the case, prosecutors provided public notice that they would file discovery material, although they no longer had an immediate deadline to do so.[147] On January 4, 2024, Trump's team asked Chutkan to reject these filings and hold prosecutors in contempt.[148] Prosecutors replied the next day saying that Trump hadn't been burdened by "the mere receipt" of documents ahead of deadline, especially as he had no deadline to reply to it.[147]

On January 9, 2024, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments in the immunity dispute. The three-judge panel included J. Michelle Childs, Florence Y. Pan, and Karen L. Henderson. Trump attended the hearing in person and was represented by lawyer D. John Sauer.[149] In response to a hypothetical question posed by Judge Pan about whether a U.S. president could order SEAL Team Six to assassinate a political rival, Sauer argued that unless the President were subsequently impeached and convicted for said unlawful order, the President could not be criminally prosecuted.[150] Judge Pan pointed out that if there is any circumstance in which a president can be criminally prosecuted (in this hypothetical, after being convicted by the Senate), then the president's immunity is not absolute. Judge Henderson added: "I think it's paradoxical to say that [Trump's] constitutional duty to 'take care that the laws be faithfully executed' allows him to violate criminal laws."[151]

On February 6, the Circuit Court of Appeals panel unanimously affirmed the District Court ruling, concluding that Trump's alleged actions "lacked any lawful discretionary authority ... and he is answerable in court for his conduct" because "former President Trump has become citizen Trump ... [and] any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."[8][152][153] The panel held further that former Presidents have no immunity for "allegedly violat[ing] generally applicable criminal laws" while in office, and specifically "to commit crimes that would neutralize the most fundamental check on executive power -- the recognition and implementation of election results".[152][153] The panel noted that while "the separation of powers doctrine may immunize lawful discretionary acts… [it] does not bar the federal criminal prosecution of a former President for every official act", and that absolute presidential immunity "would collapse our system of separated powers by placing the President beyond the reach of all three Branches".[152][153] The panel concluded that "We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter".[8] The Circuit Court of Appeals panel set the deadline to appeal to the Supreme Court for a stay and hearing on an emergency basis for February 12.[152][153]

Pre-trial motions[edit]

During "full Ginsburg" interviews on August 7, new Trump attorney John Lauro asserted "a technical violation of the Constitution is not a violation of criminal law" so it was "just plain wrong" that Trump had pressured Pence to violate the law. Pence had said four days earlier that Trump and his advisers had pressured him "essentially to overturn the election".[154][155] On September 11, Trump asked Chutkan to recuse herself accusing her of "prejudging the facts pertinent to the case and his culpability".[156] On September 17, he repeated the request.[157] Chutkan denied the request ten days later.[158]

Also on October 5, a consortium of media organizations filed a request with Chutkan to allow live broadcasting of the trial's proceedings.[159]

In an October 10 court filing, prosecutors said that Trump and his legal team had "repeatedly and publicly announced" that they would employ an "advice of counsel" defense, i.e., shifting blame to certain lawyers for advising Trump wrongly. Prosecutors asked Chutkan to order Trump to disclose by December 18 whether he intended to use this defense. This defense would require Trump to reveal communications and evidence related to his current and former attorneys, and he would thereby forfeit his assertions of attorney-client privilege. Prosecutors noted in the motion that at least 25 witnesses had asserted attorney-client privilege during the course of their investigation.[160] On October 11, Trump's attorneys filed a motion for discovery based on claims made by U.S. Representative Barry Loudermilk that the House January 6 Committee did not turn over all of its evidence while the committee was under investigation by the House Administration Oversight Subcommittee.[161] The motion requested subpoenas be issued to Bennie Thompson (who chaired the January 6 House committee), Loudermilk, the House Administration Oversight Subcommittee, the Clerk of the House of Representatives, the Archivist of the United States, and White House and Department of Homeland Security attorneys.[162]

On October 23, Trump's attorneys filed three motions to dismiss the indictment on the grounds that it violates the Freedom of Speech Clause, violates the Double Jeopardy Clause and the Due Process Clause of the 5th Amendment (with the former being cited due to Trump's acquittal in his second impeachment trial), that the indictment fails to state an offense, and that the indictment is a selective prosecution, as well as a motion to strike the allegations related to the January 6 Capitol attack as prejudicial and inflammatory.[163][164] On November 3, the prosecution filed a reply to the October 5 media consortium request urging that Chutkan reject it in accordance with Rule 53 of the Federal Rules of Criminal Procedure.[165][166][167] On November 6, the prosecution filed a reply to the October 23 motions to dismiss arguing that they were without merit.[168][169] On November 10, Trump's attorneys filed a reply in support of the October 5 media consortium request,[170][171] to which the prosecution replied in opposition on November 13.[172][173] On November 17, Chutkan ruled that the defense had failed to demonstrate that the language in the indictment was prejudicial or inflammatory in rejection of the October 23 motion to strike.[174][175] On November 27, Chutkan rejected the October 11 motion for discovery filed by Trump's attorneys.[176][177]

On November 28, Trump's attorneys submitted a motion to compel discovery in two separate filings with 59 separate requests for evidence from the prosecution related to vote fraud in the election, actual or attempted foreign interference with election infrastructure during the election, political bias in U.S. Intelligence Community assessments of foreign interference, the existence of any potential undercover government operatives or informants at the January 6 Capitol attack, and communications or coordination between the Justice Department with the Biden administration or Biden family (including Hunter Biden).[178][179][180][181]

On December 11, the special counsel filed a brief indicating he would present an expert witness at trial who had extracted and examined data from Trump's phone from the weeks while he attempted to subvert the election. The data had been obtained from Twitter under a January 2023 search warrant.[182][183]

On December 27, the special counsel asked the court to prohibit Trump from presenting "irrelevant disinformation", such as Trump's accusations that the mayor of Washington, D.C., the National Guard, and the Capitol Police failed to prevent the attack. Smith argued: "A bank robber cannot defend himself by blaming the bank's security guard for failing to stop him."[184]

Reactions[edit]

Defendant[edit]

The Trump campaign responded to the indictment with a press release, accusing President Joe Biden of political persecution and claiming that it was election interference.[185] The Trump campaign issued a statement calling the indictment "reminiscent of Nazi Germany".

Republicans in support of the indictment[edit]

  • Mike Pence, who was Trump's vice president and, at the time, was also running for the Republican nomination in the 2024 presidential election, issued a statement strongly condemning Trump, stating that this indictment was "an important reminder [that] anyone who puts himself over the constitution should never be president of the United States".[186] In an interview with reporters at the Indiana State Fair the next day, he expanded on his comments, stating that he could not have overturned the election results as vice president.[187]
  • Former U.S. attorney general William Barr said the case against Trump was legitimate and that he will testify if he is called.[188]
  • Adam Kinzinger, a member of the January 6 Committee and a former Illinois representative, tweeted that "Today is the beginning of justice" and added that Trump is "a cancer on our democracy".[189]
  • Former New Jersey Governor Chris Christie, who was running for the 2024 presidential Republican nomination at the time, said Trump "swore an oath to the Constitution, violated his oath & brought shame to his presidency."[190]
  • Former Arkansas Governor Asa Hutchinson, who was running for the 2024 presidential Republican nomination at the time, said "Trump has disqualified himself from ever holding our nation's highest office again."[191]
  • On August 14, 2023, nearly a dozen former judges and federal legal officials, all appointed by Republicans, submitted an amicus brief saying they agreed with Jack Smith's proposed trial date of January 2, 2024.[192] The brief states "There is no more important issue facing America and the American people‍—‍and to the very functioning of democracy‍—‍than whether the former president is guilty of criminally undermining America's elections and American democracy in order to remain in power [...]".[192]

Republicans opposed to the indictment[edit]

  • Ron DeSantis, the governor of Florida who was also running for the 2024 presidential Republican nomination, tweeted that he would "end the weaponization of government, replace the FBI director, and ensure a single standard of justice for all Americans" if elected. He also voiced agreement with the defendant's claim that the charges were politically motivated. In addition, DeSantis has previously expressed his intention to pardon Trump if he were to win the presidency.[193]
  • Then-Speaker of the House Kevin McCarthy wrote on Twitter that House Republicans would "continue to uncover the truth about Biden Inc. and the two-tiered system of justice."[194]
  • With a looming September 30 deadline to fund the government for the coming fiscal year starting October 1, some House Republicans had proposed leveraging their power of the purse to try to stop the federal and state prosecutions of Trump, though a federal shutdown would not affect the prosecutions.[195]

Democrats in support of the indictment[edit]

See also[edit]

References[edit]

Footnotes[edit]

  1. ^ The Texas woman's criminal trial began on October 30.[79][80]
  2. ^ Thompson v. Trump, 1:21-cv-00400 (D.D.C.); Swalwell v. Trump, 1:21-cv-00586 (D.D.C.); Blassingame v. Trump, 1:21-cv-00858 (D.D.C.).
  3. ^ James Blassingame v. Donald Trump, 22-5069, (D.C. Cir.). Appeals to the U.S. District of Columbia Circuit Court of Appeals in Blassingame v. Trump, Thompson v. Trump, and Swalwell v. Trump were consolidated.

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Works cited[edit]

External links[edit]

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