10/16 2023 Court's In Session -- while we wait...

[ancianita]

a review of Motions 57 & 64 that Judge Chutkan rules on today.


She'll rule on a partial gag that strictly adheres to the facts and arguments presented these two Jack Smith motions below.




10/16/2023 -- 10:00 AM hearing on the Smith's filed #57 Protective Order

MINUTE ORDER as to DONALD J. TRUMP:
The court hereby schedules a hearing on the government's 57 Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings on October 16, 2023 at 10:00 AM in Courtroom 9.
The requirement of Defendant's appearance is waived for this hearing.
Signed by Judge Tanya S. Chutkan on 9/29/2023. (zjd)




Here is the more detailed Motion 64 to support Motion 57, which the Judge is also considering:


(However, 9/29/2023 Docket Entry # 64 no longer found on the court listener docket page, but still exists, and is reprinted here, including my bolding )


REPLY in Support by USA as to DONALD J. TRUMP re 57 MOTION to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings (Gaston, Molly)


The need for the proposed order is further evidenced by a review of the defendant’s

prejudicial statements in the weeks since the Government initially filed its motion on September

5. See ECF No. 47-3. Since that date, the defendant has continued to make statements that pose

a substantial likelihood of material prejudice to this case and that fall within the narrowly tailored

order proposed by the Government. These include:

• On September 5, shortly before the Government filed its motion, the defendant posted an
article on the social media platform Truth Social, on which the defendant has more than 6
million followers, making claims about the Court with the sarcastic caption, “Oh, I’m sure
she will be very fair” and an article circulating a false accusation against a Special
Counsel’s Office prosecutor with the caption, “Really corrupt!” 3

• On September 6, on Truth Social, the defendant issued two posts attacking the former Vice
President, a witness identified in the indictment, in relation to this case, saying that he had
seen the Vice President “make up stories about me, which are absolutely false,” and that
the witness had gone to the “Dark Side”; 4

• In an interview aired on NBC’s Meet the Press on September 17, 5 the defendant answered
questions for more than an hour, and said, among other things:

o That the Georgia Secretary of State, a witness identified in the indictment, recently
said things that he had not, including that the defendant “didn’t do anything wrong”
during a phone call constituting an overt act in the indictment;

o That another witness identified in the indictment, the former Attorney General,
“didn’t do his job” during the charged conspiracy because he was afraid of being
impeached;





3
https://truthsocial.com/@realDonaldTrump/posts/111013216116097929;
https://truthsocial.com/@realDonaldTrump/posts/111013180388667397.
4
https://truthsocial.com/@realDonaldTrump/posts/111019762094553476;
https://truthsocial.com/@realDonaldTrump/posts/111019761485786681.
5
https://www.nbcnews.com/meet-the-press/transcripts/full-transcript-read-meet-the-press-
kristen-welker-interview-trump-rcna104778




page 10 of 22




• On September 22, on Truth Social, the defendant falsely claimed that the retiring Chairman
of the Joint Chiefs of Staff, a witness cited in the indictment, had committed treason and
suggested that he should be executed: 6




• On September 23, on Truth Social, the defendant re-posted with the caption “What a
mess!” the false claim that the Georgia Secretary of State “knew [of tens of thousands of
fraudulent votes in Georgia in 2020] and covered it up”; 7 and

• On September 26, on Truth Social, the defendant posted a link to an article singling out a
specific prosecutor in the Special Counsel’s Office and claiming that the SCO is a “team
of Lunatics that are working so hard on creating Election Interference . . . ” 8


The defendant’s baseless attacks on the Court and two individual prosecutors not only

could subject them to threats—it also could cause potential jurors to develop views about the



6
https://truthsocial.com/@realDonaldTrump/posts/111111513207332826.
7
https://truthsocial.com/@realDonaldTrump/posts/111112757748267246.
8
https://truthsocial.com/@realDonaldTrump/posts/111133017255697239.




page 11 of 22


propriety of the prosecution, an improper consideration for a juror prior to trial. See Fieger, 2008

WL 474084 at *3-6 (E.D. Mich. Feb. 19, 2008) (magistrate judge imposing an order, adopted in

relevant part by district court, preventing defendant from publicizing, including through

commercials, his claims of improper, selective, or vindictive prosecution because they “create the

danger that potential jurors will associate the content of these commercials to this criminal

prosecution of Defendant Fieger. The commercials therefore are substantially likely to materially

prejudice a fair trial even though this pending criminal action is not explicitly mentioned.”);

Scrushy, 2004 WL 848221, at *4-*6 & n.5 (N.D. Ala. April 13, 2004) (ordering all trial

participants, including the defendant, to “remove from their existing webpages . . . allegations of

prosecutorial misconduct,” and ordering the defendant not to use “his morning television show

. . . to make statements about the case that his lawyers would be precluded from making by the

Rules of Professional Conduct”).


Likewise, the defendant’s continuing public statements about witnesses are substantially

likely to materially prejudice a fair trial. In his opposition, the defendant makes light of some of

his previous attacks on witnesses—some of whom are federal and state government figures in their

own right—by stating that such witnesses do not “sh[y] away from a hearty public debate with

[the defendant]” and were not intimidated by the defendant, or by implying that government

officials somehow have asked for his attacks because they “have made politics, for all its discord

and discourse, a large part of their lives.” ECF No. 60 at n.7. Even assuming that certain witnesses

are not intimidated by the defendant’s statements, other witnesses see and may be affected by what

the defendant does to those who are called to testify in this case. And regardless of whether certain

witnesses are intimidated by the defendant’s extrajudicial statements, the defendant should not be




Page 12 of 22


permitted to attack or bolster the credibility of any witness in a manner that could influence

prospective jurors.

In addition, the defendant’s argument essentially concedes that he is trying this case in the

public sphere, not in the courtroom, which is precisely the harm that Rule 57.7(c) is designed to

prevent. The defendant is publicly maligning witnesses and very intentionally commenting on the

specific topics of their potential testimony at trial. In the context of a pending criminal case and

trial, it is not the solution to the defendant’s improper and prejudicial statements to encourage a

“hearty public debate” in the media regarding witnesses and the merits of the case—it is the

problem. See Sheppard, 384 U.S. at 351 (“legal trials are not like elections, to be won through the

use of the meeting-hall, the radio, and the newspaper” and “freedom of discussion . . . must not be

allowed to divert the trial from the very purpose of a court system to adjudicate controversies . . .

in the calmness and solemnity of the courtroom according to legal procedures”) (internal citations

omitted). From the defendant’s statements, potential jurors may form improper views about

various witnesses’ reputations, veracity, or what they will say at trial. The Court can and should

prevent such improper dissemination of information about the substance of this case. Id. at 363;

see also Marshall v. United States, 360 U.S. 310, 312-13 (1959) (prejudice arising from jurors’

exposure to evidence from extrajudicial sources can be particularly acute because “it is then not

tempered by protective procedures.”); United States v. Lindh, 198 F. Supp. 2d 739, 743 (E.D. Va.

2002) (“Defendant has no constitutional right to use the media to influence public opinion

concerning his case so as to gain an advantage at trial. No such right inheres in either the Sixth

Amendment right to a public trial, or the public’s First Amendment right to a free press.”).

Contrary to the defendant’s claim, the Government is not trying to “unconstitutionally

silence” the defendant, ECF No. 60 at 2, and the proposed order would have no such effect. Since





Page 13 of 22


the Government’s initial filing, beyond the prejudicial examples cited above, the defendant has

made a large volume and wide variety of public statements—through social media posts,

interviews, and speeches—that would be unaffected by the proposed order. If the Court entered

the proposed order, it would in no way hinder the defendant’s ability to campaign and publicly

maintain his innocence. All it would limit is the defendant’s use of his candidacy as a cover for

making prejudicial public statements about this case—and there is no legitimate need for the

defendant, in the course of his campaign, to attack known witnesses regarding the substance of

their anticipated testimony or otherwise engage in materially prejudicial commentary in violation

of the proposed order.


ii. The Defendant’s Opposition Misstates the Facts

The defendant’s opposition makes no attempt to address most of the factual record that the

Government submitted to the Court regarding the defendant’s history and current practice of using

public statements to target individuals, see ECF No. 57 at 2-13, and instead advances conclusory

statements that the Government’s claims are baseless. That is because he cannot explain away the

obvious intent and well-known effect of his words. The single statement that the defendant does

address—in a footnote—is the threatening Truth Social post that he issued on August 4, the day

after his arraignment in this case: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” The

defendant complains that the Government’s motion did not note that after public outcry—given

the objectively reasonable understanding of the defendant’s post as a threat related to this case—

a spokesperson issued a statement claiming that the defendant had issued the threat “in response

to . . . special interest groups and Super PACs.” ECF No. 60 at n.8. But the spokesperson’s after-

the-fact explanation is implausible on its face. The truth is clear: the defendant was caught making

a public threat and then had a spokesperson issue an excuse. As the Court has stated, “even





page 14 of 22


arguably ambiguous statements from parties or their counsel, if they could reasonably be

interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”

Protective Order Hr’g 72-10. The defendant should not be permitted to obtain the benefits of

his incendiary public statements and then avoid accountability by having others—whose messages

he knows will receive markedly less attention than his own—feign retraction. 9 Likewise, 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.

The defendant’s opposition also makes the self-serving claim that rather than address the

source of the material prejudice—the defendant’s inflammatory statements—the Court should

employ alternatives to a Rule 57.7(c) order, such as change of venue, postponement of trial, voir



9
The defendant recently was caught potentially violating his conditions of release, and
tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign
spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms
Licensee in Summerville, South Carolina. The video posted by the spokesman showed the
defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated,
“I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman
captioned the video Tweet with the representation that the defendant had purchased the pistol,
exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman
subsequently deleted the post and retracted his statement, saying that the defendant “did not
purchase or take possession of the firearm” (a claim directly contradicted by the video showing
the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former
president purchased Glock amid questions about legality (Sept. 25, 2023),
https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-president-
purchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his
spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of
his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his
rally in South Carolina after being arrested 4 TIMES in a year.”
The defendant either purchased a gun in violation of the law and his conditions of release,
or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate
federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a
gun while this felony indictment is pending. See 18 U.S.C. § 922(n).





page 15 of 22


dire, or jury instructions. ECF No. 60 at 14. But such alternatives are not adequate because they

would not address the source of the prejudice: the defendant’s repeated efforts to try this case in

the media. The Court’s duty here is to implement “measures that will prevent the prejudice at its

inception,” Sheppard, 384 U.S. at 363, and so long as the defendant persists in making materially

prejudicial statements on social media, in interviews, and in speeches, the defendant will continue

to affect the potential venire for this trial. In addition, the defendant’s statements have such broad

reach that as long as he makes them, he will taint potential jurors anywhere in the country. See

Gentile, 501 U.S. at 1075 (even “[e]xtensive voir dire may not be able to filter out all of the effects

of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change

of venue may not suffice to undo the effect of [trial participants’] statements”); Brown, 218 F.3d

at 431 (jury instruction may fail to address threat of “carnival atmosphere” around trial). Finally,

the alternatives that the defendant suggests the Court consider would have the perverse incentive

of encouraging, rather than curbing, the defendant’s prejudicial statements. The defendant has,

for instance, already stated publicly that he intends to seek a change of venue in this case. See

ECF No. 57 at 7-8. He should not be permitted to pollute the jury pool in this District with his

prejudicial statements and then seek a change of venue based on the complaint that the venire is

tainted.

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming

that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief

statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for

the events of January 6, 2021—which, according to the defendant’s opposition, the indictment

does not allege. ECF No. 60 at 19-20. The defendant is wrong. First, the indictment, filed in

court, does what indictments are supposed to do: set forth the criminal charges against the




page 16 of 22


defendant and give notice of the factual allegations that underpin them. The defendant provides

no support for his claim that the indictment can be a source of unfair prejudice here—because there

is no such support. And second, the indictment does in fact clearly link the defendant and his

actions to the events of January 6. It alleges—and at trial, the Government will prove—the

following:

• The defendant’s criminal conspiracies targeted, in part, the January 6 certification and
capitalized “on the widespread mistrust the [d]efendant was creating through pervasive
and destabilizing lies about election fraud,” ECF No. 1 at ¶4.

• In advance of January 6, the defendant “urged his supporters to travel to Washington
on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January
6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the
Vice President had the authority to and might use his ceremonial role at the certification
proceeding to reverse the election outcome in [his] favor, id. at ¶96.

• Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’”
id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice
President in public remarks,” id. at ¶102, and “repeated knowingly false claims of
election fraud to gathered supporters, falsely told them that the Vice President had the
authority to and might alter the election results, and directed them to the Capitol to
obstruct the certification proceeding and exert pressure on the Vice President to take
the fraudulent actions he had previously refused,” id. at ¶10d.

• Finally, on the afternoon of January 6, after “a large and angry crowd—including many
individuals whom the [d]efendant had deceived into believing the Vice President could
and might change the election results—violently attacked the Capitol and halted the
proceeding,” the defendant exploited the disruption in furtherance of his efforts to
obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly

false claims of election fraud, led to the events of January 6.

The defendant’s motion also attempts to downplay defense counsel’s clear violations of

Rule 57.7(b), and appears to suggest that the defendant’s attorneys reserve the right to violate that

Rule in the future. See ECF No. 60 at 19-22. But it is uncontroverted that, on multiple occasions

in the week following the unsealing of the indictment, defense counsel appeared on media




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programs and talked extensively about this case, including on topics that Rule 57.7(b) prohibits

attorneys from discussing. See ECF No. 57 at 16 (citing Rule 57.7(b) and linking to lead counsel’s

appearances). The defendant’s opposition then complains that the Court would render his

attorneys inadequate if it were to restrict them from further public statements through the

Government’s proposed 57.7(c) order, but fails to recognize that most of its terms mirror existing

restrictions on all attorneys practicing in this District under Local Criminal Rule 57.7(b). Compare

Local Criminal Rule 57.7(b) (prohibiting attorneys from making extrajudicial statements

regarding, among other things, the “identity, testimony, or credibility of prospective witnesses”)

with ECF No. 57-2 (same, with prohibition on “disparaging and inflammatory or intimidating

statements” about parties, witnesses, attorneys, court personnel, or potential jurors).

Finally, the defendant’s opposition makes faulty claims about the scope and applicability

of the proposed order. In addition to making inaccurate claims about the proposed order’s breadth,

see ECF No. 60 at 17, the defendant suggests that the Government seeks to prevent the defendant

from “redress[ing] the unfairness of this proceeding through legitimate means” including “for

example, filing motions with the Court.” ECF No. 60 at 10-11. But nothing in the proposed order

prevents the defendant from doing so—rather, it explicitly states that he can. See ECF No. 57-2

at 1-2 (order “does not preclude the defendant or his attorneys, agents, or others acting on his

behalf from (a) quoting or referring without comment to public records of the court in the case”).

Similarly, the defendant’s opposition states that “the prosecution seeks only to bar [the defendant]

from speaking.” ECF No. 60 at 13. Not so. The proposed order applies to all parties—including

the Government. But the defendant’s allegation here is telling, in that it highlights that the

defendant—and no other party—is making materially prejudicial public statements in this case…


the Government has proposed that the Court enter an order with five

reasonable conditions:

(1) any party—whether the Government or the defendant—must notify the

Court ex parte before the party or “any individual or entity acting at the party’s direction or under

the party’s control undertakes any jury study in the District of Columbia;”

(2) the notice must include a brief description of the intended methodology, all questions to be asked, and the expected





Page 19 of 22


number of participants;

(3) the party cannot begin the jury study, or use any results from it, absent

the Court’s approval, which may be conditioned on editing or removing portions of the intended

jury study that threaten to materially prejudice the jury pool;

(4) the jury study must be completed

30 days before the start of jury selection; and

(5) the party must maintain the names and addresses

of the study participants and provide that information to the Court at least two weeks prior to jury

selection. See ECF No. 57-3. The defendant objects to every one of these provisions. 10

First, the defendant posits that “jury studies and polling have almost no chance of

influencing the jury,” noting that “Washington D.C. has almost 700,000 residents” and “[a]

statistically significant sample size would ordinarily include only a few hundred people.” ECF

No. 60 at 23. But the size of the jury pool is immaterial; indeed, the Government’s motion cites

to a standing order on jury studies in a Division of the Eastern District of Texas with a population

exceeding that of this District. See ECF No. 57 at 19 (citing Judge Clark’s standing order in the

Beaumont and Lufkin Divisions); https://www.census.gov/library/stories/state-by-state/texas-

population-change-between-census-decade.html (estimating the 2020 population of the counties

comprising the Division to be approximately 832,000). In addition, nothing would prevent the

defendant from creating and implementing a biased jury study and then publicizing its results—or

answers to specific, slanted questions—on a widespread basis to the entire potential jury pool. The

Court should exercise its discretion to protect against such prejudice by taking the simple step of

reviewing the proposal ex parte.




10
The defendant objects to the Government’s proposal, but “has no objection to informing
the Court of the dates and sample sizes of his polling in the District of Columbia.” ECF No. 60 at
23. The defendant’s alternative, however, would not address the potential tangible harm—
materially prejudicing the jury pool—posed by inappropriate studies.





Page 20 of 22


Second, the defendant suggests that no Court regulation is needed because “the purpose of

polling and jury studies is not to influence respondents, but to get a true read on the community’s

opinions or feelings on certain issues.” ECF No. 60 at 23. But in practice, jury studies, like other

polls, may be skewed to influence the participants or shape the results. See Ellen Kreitzberg &

Mary Procaccio-Flowers, Jury Selection: The Law, Art & Science of Selecting a Jury § 3:4 (2002)

(“Providing respondents with a misleading description of the facts may produce responses that are

pleasing to the client, but will be useless in providing insight into the reactions of the jurors who

will hear the whole truth during trial.”). 11 Because skewed studies could influence potential jurors,

the questions should be subject to review by the Court. See Brewer v. Lennox Hearth Prods., LLC,

601 S.W.3d 704, 726 (Tex. 2020) (“A campaign of disinformation, in whatever form, undermines

the sanctity of the judicial process and is inimical to the constitutional promise of a fair and

impartial jury trial.”).

Third, the defendant objects to a requirement that any jury study be concluded 30 days

before trial because “polling is most valuable if conducted close to trial.” ECF No. 60 at 24. Yet

at the status hearing one month ago, defense counsel suggested the defendant would “likely need

to do it sooner rather than later,” Transcript of Status Hearing, at 59 (Aug. 28, 2023), in reference

to polling for a Rule 26 motion, the filing deadline for which is October 9, 2023. See ECF No. 39

at ¶2 (setting deadline for “[a]ll other pre-trial motions, excluding motions in limine”). In any




11
While in office, the defendant provided an example of one type of distorted polling the
proposed order seeks to prevent: “A poll should be done on which is the more dishonest and
deceitful newspaper, the Failing New York Times or the Amazon (lobbyist) Washington Post!
They are both a disgrace to our County, the Enemy of the People, but I just can’t seem to figure
out which is worse?” See Trump Tweet, June 16, 2019, 9:39:22 EST, available at
https://www.thetrumparchive.com/ (last visited Sept. 27, 2023).




page 21 of 22


event, the proposed 30-day limit creates a reasonable buffer that would reduce the potential impact

of any jury study on the venire. See Brewer, 601 S.W.3d at 726.

Fourth, relying on Blankenship v. Fox News Network, LLC, No. 2:19-cv-00236, 2020 WL

7225765, at *1 n.3 (S.D.W. Va. Dec. 8, 2020), the defendant contends that “polls and jury studies

commissioned by defense counsel are work product and some parts, if not all, are attorney-client

privileged.” ECF No. 60 at 23. That inapposite case, though, dealt with a civil subpoena seeking

“all documents and communications that underlie these investigations as well as analyses carried

out on Plaintiff’s behalf and documents and communications between Plaintiff and his attorneys

and [the jury consulting company] pertaining to the criminal trial.” Id. at *2. Here, the proposed

order addresses a far more limited set of information—“a brief description of the intended

methodology. . . all questions that will be asked. . . [and] the expected number of participants,” as

well as the participants’ names and addresses. ECF No. 57-3 at 1-2. Assuming any privileges

applied to such information, they would dissipate when the “questions to be asked” were actually

asked of the participants. In other words, the parties cannot shield from the Court, on privilege

grounds, the questions they intend to broadcast to hundreds, if not thousands, of District residents.




page 22 of 22


The rationale for the proposed order is to protect the integrity of the trial and the jury pool,

and the regulations it would impose are modest. The defendant’s complaints are unfounded, and

the Court should exercise its discretion to enter the order.



III. Conclusion

Through both of its proposed orders, the Government seeks appropriate processes for

protecting the jury pool in this case and the integrity of this proceeding. The Court should grant

the Government’s motion and enter them.



Respectfully submitted... Smith, Gaston, and Windom

[Chainfire]

1. I expect the ruling will be the infamous STFU order.

[ancianita]

2. If you mean a total gag? No. If you mean "make your client stfu up about these things", yes.

The ruling will be consistent with facts and arguments laid out by both sides.

All judges are called that because they also judge based on every single relevant thing outside the docket info, too, that reinforces the prosecution's claims.

[ancianita]

3. What the Jack Smith team is saying in court.

Prosecutor says there’s a difference between disparaging and inflammatory comments

By Tom Jackman

Assistant U.S. Attorney Molly Gaston parsed the difference between disparaging comments by the former president and inflammatory remarks.
“He knows and understands the effect of these statements,” Gaston said.
“They are amplified and motivate people to threaten others.
It not only prejudices the jury pool but in the case of witnesses, it threatens and chills witnesses, too.”


She noted that Donald Trump “has demonstrated that he has the ability to regulate his speech.” Gaston cited Trump’s Sept. 17 interview with “Meet the Press.” While “the defendant said false things about the potential testimony of one of the witnesses in the case, he also displayed the ability not to answer questions,” she said.
When Trump was asked on the show about the Jan. 6, 2021, Capitol riot, “he repeatedly said … ‘Why would I tell you that?’ He is using his campaign as a platform to make these statements with the intention of trying the case in the court of public opinion rather than this court,” Gaston argued.

https://www.washingtonpost.com/national-security/2023/10/16/trump-court-hearing-judge-gag-order-jan-6/

[ancianita]

4. Chutkan is now in recess. idk what she might be doing, but venture to guess

that she's formulating further key questions for the defense, readying her limited gag order wording, accordingly, and ruling today.