U.S. District Judge Tanya Chutkan | Breaking Big Money's Grip on America

On Thursday, August 10^th, Special Counsel Jack Smith requested a January 2, 2024 trial date in the insurrection case against Donald Trump.[1] Objecting to such an early trial, Trump immediately fired back that Smith was “deranged” and the date was “election interference,” given the Iowa caucuses are just two weeks later on January 15, 2024.[2]

The prosecutors have indicated that the first batch of discovery material they will share with Trump’s team includes roughly 11.6 million pages.[3] For the defense to just review that much evidence — and there’s more to come — would most likely take longer than five months.

Trump, on the other hand, wants to delay the trial until after the 2024 election. He is betting on winning the election. As president, he would then fire Smith and Attorney General Merrick Garland and have the charges dropped by his newly appointed attorney general.

By calling for such an early trial, Smith is giving U.S. District Judge Tanya Chutkan room to set a compromise date that would still be prior to the general election campaign next fall. The judge indicated that she would set the trial date at the next pretrial hearing on August 28^th.

If the trial is to be before the election — given that the voting public needs to know the verdict before going to the polls — it stands to reason the case should be heard before the Republicans choose their candidate for president next July. The GOP must know whether Trump is a convicted felon before it chooses its nominee.

Then, on Friday, Judge Chutkan held a hearing regarding “protective orders” governing evidence. Smith’s motion for a protective order was in response to Trump’s post on social media: “If you go after me, I’m coming after you.”[4] Trump has made a number of other threatening or intimidating remarks targeting potential witnesses, like former Vice President Mike Pence, as well as Smith, that could also impact the jury pool.[5]

But Trump’s bullying just may backfire. In response to his public browbeating, Judge Chutkan made it clear that she would not tolerate Trump harassing or threatening witnesses. She noted:

Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process…The more a party makes inflammatory statements about this case which could taint the jury pool, the greater the urgency will be that we proceed to trial quickly.[6]

We all know what a hard time Trump has keeping his mouth shut. The judge has warned him and his lawyers that she “will take whatever measures are necessary to safeguard the integrity of these proceedings.”[7] That could even include incarcerating Trump prior to the trial. Just a few days ago in another federal criminal case, U.S. District Judge Lewis Kaplan revoked Sam Bankman-Fried’s bail and ordered him jailed pending trial for attempting “to tamper with witnesses” in his multibillion-dollar fraud case.[8]

While Trump may have valid arguments for a trial date later than next January, Trump’s inability to behave ethically in accordance with the judge’s orders may hasten his trial date and lead to his downfall. In effect, Trump is his own worst enemy.

Bruce Berlin

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://www.courthousenews.com/feds-push-for-january-trial-date-in-jan-6-case-against-donald-trump/

[2] https://www.yahoo.com/news/rattled-trump-melts-down-truth-135728272.html

[3] https://www.cbsnews.com/news/trump-protective-order-january-6-case-judge-hearing/

[4] https://www.politico.com/news/2023/08/04/feds-alert-judge-to-trumps-if-you-go-after-me-im-coming-after-you-post-00109944

[5] https://www.newsweek.com/donald-trump-mike-pence-attacks-jan6-trial-1818217

[6] https://www.politico.com/news/2023/08/11/judge-warns-trump-speed-trial-00110870

[7] Ibid.

[8] https://www.politico.com/news/2023/08/11/sam-bankman-fried-sent-to-jail-while-he-awaits-trial-00110933

Many thought this day would never come. My gut told me that American democracy would not survive if it let Donald Trump off the hook. Then, on August 1, 2023, more than two and a half years after the January 6^th attack on our nation’s Capitol, Trump was indicted for conspiring to overturn the 2020 presidential election. The former president is finally being held accountable for his treasonous conduct.

While there is no guarantee that justice will prevail, there is now a clear and convincing path to Trump’s being found guilty as charged. For those who still remain skeptical, consider these factors:

The Judge Assigned to the Case. U.S. District Judge Tanya Chutkan, nominated to the bench by President Barack Obama and confirmed by a 95-0 bipartisan Senate vote, will oversee the case. She has stood out as one of the toughest punishers of rioters who stormed the U.S. Capitol on January 6^th, even handing down harsher sentences than Justice Department prosecutors recommended. At one sentencing hearing, Judge Chutkan explained, “It is not patriotism, it is not standing up for America to stand up for one man – who knows full well that he lost – instead of the Constitution he was trying to subvert.”¹

In November 2021, Judge Chutkan ruled against Trump in a prior hearing when she refused his request to block the release of documents to the U.S. House’s Jan. 6 committee by asserting executive privilege.²

The Trial Venue. The January 6^th conspiracy case will be tried in Washington, D.C., a pretty progressive city with a multicultural population. Unlike the Mar-a-Lago documents case in Florida, the jury pool will not be drawn from a Republican-friendly area more inclined to look favorably upon the former president.

Trump has already questioned whether an impartial jury can be seated in D.C. But Judge Chutkan previously ruled in the case of one January 6^th defendant that the assumption the jury pool would be politically biased against them was “not an appropriate basis for changing venue.” She found that “Jurors’ political leanings are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court.”³ Judge Chutkan will not permit the trial to be moved to another venue.

The Timing of the Trial. It is critical that the case be tried before the November 2024 presidential election. The American people must know the outcome of this trial before they go to the polls, assuming Trump is the GOP nominee, which now seems likely. But Trump and his attorneys will do everything they can to delay the trial until after the election. They will argue that they need more time for discovery and pre-trial motions in such an important case.

Additionally, Trump will contend that the government had over two years to prepare its case, and, in all fairness, he should have just as much time to get ready for the trial. In fact, Jack Smith, the special prosecutor handling the case, was not appointed until November 18, 2022, less than nine months ago. Prior to that, the Department of Justice was focusing on prosecuting people who participated in the January 6^th attack on the Capitol. Preparing the case against Trump was not the DOJ’s focus until Smith came on board. Thus, Smith can argue that giving Trump, who has known for several months that an indictment was coming, another nine months to get ready for trial would be equivalent to what the prosecutor has had to put his case together.

The 1974-75 Watergate case involved high-level officials in the Nixon administration who were charged and convicted of conspiracy and obstruction of justice. It was a complex political trial comparable to the January 6^th insurrection case. President Nixon was named as an unindicted co-conspirator in that case.⁴The seven defendants were indicted on March 1, 1974, and tried and convicted in January 1975, less than a year later.⁵Given the Watergate precedent, Trump’s trial could be completed by next summer.

Trump already has two other trials scheduled for next year. In one of them, Manhattan District Attorney Alvin Bragg has signaled that he is ready to set aside former President Trump’s March 2024 trial date in New York to make way for a possible trial related to Special Counsel Jack Smith’s January 6^th insurrection trial.⁶That would make a Spring 2024 trial date for the insurrection case feasible. It would also provide Trump’s attorneys with approximately nine months to prepare for trial.

The Prosecutor. Special Counsel Smith has a reputation for winning tough cases against war criminals, mobsters, and crooked cops.⁷As a former prosecutor for the NM Public Education Department, I know that prosecutors do not bring charges against someone unless they are confident that they have the evidence to prove their case. I’m sure Smith has that confidence as well.

Smith called for a speedy trial in this case.⁸One very significant indicator of Smith’s desire to bring this case to trial as soon as possible is that despite noting six other co-conspirators, none of them were indicted. Indicting others would have required more discovery and pre-trial motions which would have been more reason to extend the trial date. Smith is well aware of the importance of trying and winning this case before next year’s election.

The Key Witnesses. Almost all of the key witnesses in this case are credible Republicans, most of whom were appointed by or closely associated with Trump. Bill Barr, Trump’s former attorney general, confirmed that Trump “knew well he lost the election.”⁹

Former Vice President Pence stated that Trump pushed him to reject the Electoral vote count on January 6^th in violation of his Constitutional role and send the election to the House of Representatives.¹⁰There are many more GOP witnesses of high standing ready to testify how Trump plotted to overthrow the government. The picture they will paint is of a power-hungry tyrant itching to turn American democracy into an autocracy under his total control.¹¹The DOJ and the American people cannot allow this to happen.

The time has come. For Donald Trump, it’s the beginning of the end.

Bruce Berlin

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