A Clapback and a Bench Slap

Today, we have a fifty page ruling by Judge Chutkan on Trump's ridiculous discovery motion, as well as Jack Smith's response to Trump's motion to dismiss the case on statutory grounds.

There are two important, new filings on the DC docket in the Trump coup case today.

First is Judge Chutkan's denial of most of Trump's requests for discovery - because most don't exist or aren't material to his case - and her total shutdown of Donald's assertion that the scope of the prosecution team includes nine other federal agencies.

Second is Jack Smith's response to Trump's motion to dismiss the entire DC case based on the Supreme Court's narrowing of 18 USC § 1512(c)(2) in the Fischer case.

Let’s start with Judge Chutkan’s FIFTY PAGE denial of the majority of Trump’s illogical requests to compel discovery. In it, she states that Donald asked for fourteen categories of information, and she has granted him small parts of three of those categories - most of which the DoJ has likely already produced or doesn’t have access to.

First, she says that in order to compel discovery, trump must first show that the documents he wants are material to his case, and once he establishes that, the court has to decide if the government has control over it.

Accordingly, the court begins by assessing what information the Government is obligated to search for, and then determining where the Government must search for it.

Right off the bat, most of what Trump wants, Trump will not get. Mostly because it either 1. Doesn’t exist, 2. Isn’t material, and 3. Isn’t within the scope of the prosecution team (the DoJ doesn’t have it.)

Five of the fourteen categories of information Defendant seeks specifically request discrete, identified documents. The remaining nine categories are generic requests for “all information” or “evidence” relating to certain topics. As explained below, Defendant has only carried his burden with respect to a small portion of the information he seeks. For most of it, he has proffered only speculation that a search will yield material, noncumulative information.

The funniest part of this whole thing, though, is WHY Donald wants the stuff. He says it’s to show that he truly believed that there was election fraud - and more specifically - foreign election interference. AND he wants to use the Mueller investigation materials to prove that foreign election interference is real. How’s that for a slap in the face?

Anyhow, the problem with all this stuff is that Donald literally says that he hasn’t seen any of the things he’s asking for - but that they will help him prove his state of mind at the time. He’s quite literally asserting that his claims of election fraud were based on things no one ever told him or showed him. That’s not really how things work on Earth 1, but that’s what he asked for. The Judge pointed it out to him several times:

Moreover, while Defendant purports to seek much of this information to show his state of mind at the time of his indicted conduct—i.e., his “good faith and the absence of criminal intent” in “disagree[ing] with officials now favored by the prosecution and [relying] instead on [his] independent judgment . . . that the election was stolen,”—he does not indicate that he was aware of the requested information such that it could have affected his state of mind.

And:

Courts have routinely explained that information “to which defendants were not privy would be entirely irrelevant to their state of mind.”

And:

“immaterial” for purposes of a defendant’s intent “unless the defendant was aware of [it]”), (similarly requiring a defendant to have personally perceived or been provided information for it to be material to his state of mind). Defendant does not claim to have reviewed the records he seeks, their sources, or their conclusions before or during the time period of his indicted conduct. Nor does he proffer that the information therein was relayed to him by someone else.

And:

He does not indicate that he knew about these records or their contents, and so they could not have informed any concerns he had at the time.

And:

The larger problem with this request, though, is that once again Defendant has not proffered any indication that the Report’s classified details could have affected his state of mind during the alleged offenses. He argues that he “was not obligated to credit [the Report’s] assessments and determinations at the time.” That may be true, but the information Defendant now seeks could not have prompted him to discredit those assessments unless he knew about it during the relevant time period, and he does not make that claim.

I mean, I could go on because there are 10 more reminders of this from Judge Chutkan in this ruling - but how many times to you have to remind Donald that things you didn’t know couldn’t have impacted your state of mind?

Trump’s vague and over-broad requests are therefore mostly summarily denied, including things like the entire unclassified Intelligence Community Assessment of his 2016 Russian interference, the 2020 election CISA records, the 2020 election Intelligence Community Assessment, the 2020 election DoJ/DHS report, DoJ statements on January 6th rioters, January 6th security records, “undercover agents” at the Capitol on January 6th (no proof they exist and irrelevant if they do), the “missing” January 6th committee materials (no proof they exist), CIA documents, and the like.

Then there’s Trump’s request for all the government’s information on foreign influence in the 2020 election. Trump says this information proves he was right to question the integrity of the 2020 election, but it actually has nothing to do with what Trump did.

Defendant’s theories of materiality do not withstand scrutiny. The first relies on a misunderstanding of the charges against him. The Superseding Indictment does not allege Defendant’s criminal activity to be that he “create[d] an intense national atmosphere of mistrust and anger, and erode[d] public faith in the administration of the [2020] election.” Indeed, it stresses that Defendant had a right to “to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” And it identifies where Defendant’s conduct crossed the line: In addition to whatever effect those claims had on the national atmosphere, “Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.”

The difference matters. Whether Defendant sought to undermine public confidence in the election to legitimize or otherwise further his criminal conspiracies does not depend on whether other nations also tried to achieve similar results for their own purposes.

And besides - influence does not mean interference. And all Trump’s fraud claims in the indictment are DOMESTIC claims - dead voters, non-citizens, out of state voters, etc. None of it has to do with whether Russia conducted operations to favor Donald in the election.

There were three tiny categories that the Judge says could be material:

The materials the DNI used to prepare for his interview, records concerning Capitol security information that was conveyed to Trump by Milley on January 3rd, and any evidence from the DoJ probe into Pence’s handling of classified documents (this is called Jencks information - and could be used to discredit Pence as a witness - because Donald contends that Pence was somehow compelled to help the DoJ in the Trump case so he wouldn’t get in trouble for mishandling classified documents. This will be hard to prove though, given Pence FOUGHT tooth and nail to not cooperate with the DoJ.)

So DoJ will have to look for any of those records and hand them over IF THEY HAVE THEM - which the probably don’t - and if they don’t, they have until October 26th to confirm to the court that they don’t.

In this ruling, the Judge also shut down Trump’s idea of a super massive investigative team that would included nine other government agencies, and Andy and I will cover the scope of the prosecution team this weekend on the Jack podcast.

The SECOND filing on the docket today is Jack Smith’s response to Trump’s motion to dismiss the entire case based on The Supreme Court’s ruling that narrowed the scope of the 1512 statute. He writes:

The defendant’s new arguments in his supplemental brief fail to bolster his case for dismissal. He principally argues that the Supreme Court’s decision in Fischer v. United States, undermines Counts Two and Three of the superseding indictment, which charge the defendant with conspiring, obstructing, and attempting to obstruct the congressional proceeding on January 6, 2021, in violation of 18 U.S.C. §§ 1512(c)(2) and (k).

But Fischer did not invalidate Section 1512 or elevate basic pleading requirements, and the defendant fails to identify any pleading flaw in the superseding indictment warranting its dismissal. Moreover, the defendant’s motion ignores entirely that the case against him includes allegations that he and his co-conspirators sought to create and use false evidence—fraudulent electoral certificates—as a means of obstructing the certification proceeding, which Fischer expressly held falls within Section 1512(c)(2). Finally, the defendant’s half-hearted arguments against Counts One (conspiracy to defraud the United States, in violation of 18 U.S.C. § 371) and Four (conspiracy to violate civil rights, in violation of 18 U.S.C. § 241) likewise lack merit.

Andy and I argued that there’s no way the Judge will accept this argument - especially at this stage - but that neither of us can vouch for what The Supreme Court might do post-conviction. Again, we will discuss in depth this Sunday on Jack.

You can read Judge Chutkan’s ruling on discovery here.

And you can read Jack Smith’s response on Fischer here.

Thanks for reading The Breakdown!

~AG