Jack Smith Struggles To Hold March Trial Date For Trump

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Crunch Time!

It’s getting down to crunch time in the Jan. 6 case against Donald Trump. The March trial date is, believe it or not, right around the corner.

U.S. District Judge Tanya Chutkan has been as firm as she can be under the circumstances in trying to hold that date. Special Counsel Jack Smith cited in a filing last night “the public’s strong interest in a prompt trial.” And Trump is doing everything he possibly can to keep that trial from happening before the election.

Trump’s entire defense strategy rests on running out the clock in the hopes he will be elected president again and can make this all go away. The delay strategy trumps any claims of innocence, substantive defenses to the charges, or Trumpian counter-narrative to the story the prosecution tells in the indictment.

Delay is really the whole ballgame. With all that in mind, here’s some of what’s happened since the last Morning Memo:

Trump: All Proceedings Must Halt … NOW!

Trump’s claim to absolute immunity from criminal prosecution is his best gambit to delay the Jan. 6 trial, and he’s trying to exploit it to the maximum extent possible. Why immunity? Because under the law, immunity protects officials from even having to engage in the inconvenience and hassle of legal proceedings.

With Chutkan having ruled against Trump on immunity, and him now having appealed her ruling to the DC Circuit, he filed a motion Thursday telling (rather than asking) Chutkan that all proceedings before her in the case must now stop because she lacks any jurisdiction to proceed as long as the case is with the appeals court.

That could pose a significant threat to the trial date, depending on how quickly the DC Circuit acts.

Jack Smith: Not So Fast, Buddy

In a short three-page response last night, Special Counsel Jack Smith conceded that Chutkan’s jurisdiction is very limited while the immunity argument is up on appeal. But Smith said Trump was taking it too far. Smith argues that Chutkan doesn’t need to issue the blanket order Trump wants halting all proceedings. That’s redundant, Smith says.

Instead, Smith says Chutkan can still hold the March trial date on the calendar, continue to rule on already pending motions, enforce the gag order against Trump as newly modified by the appeals court, enforce the terms of his release, and generally keep things moving forward so long as they don’t burden Trump.

For his part, Smith assured Chutkan that he will abide by all of his pretrial deadlines in hopes of saving the March trial date, even if Trump is excused from doing so for now.

Appeals Court Offers Clues About Trial Date

In a related development Friday, the DC Circuit Court of Appeals was really tough on Trump in mostly upholding Chutkan’s gag order against him. It modified her gag order a bit, mainly by saying Trump can attack Special Counsel Jack Smith in the same way Chutkan allowed Trump to continue to attack the Justice Department under the First Amendment.

But what I found most notable about the ruling was how keenly aware the appeals court seems to be of the urgency of holding the March trial date. It dropped clues throughout the opinion that it is watching the trial calendar closely. Now, this was just one three-judge panel (not the entire appeals court) and so I don’t want to overread things. But the clues they dropped were notable:

• The appeals court noted that it handled the gag order appeal on a “highly” expedited basis “because of the approaching trial date.” This suggests to me that it will handle the immunity appeal with similar alacrity.
• “Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process.” This suggests to me a general aversion to kicking the can down the road and an awareness that it has a role to play in letting this case get to trial.
• “Mr. Trump has repeatedly asked to push back the trial date in this case for two additional years, and the district court has considered and denied those requests.” This suggests to me the appeal court gets the game Trump is playing.
• “Delays also ‘entail serious costs to the [judicial] system’ … and frustrate the public’s interest in the swift resolution of criminal charges.” This looks to me like a warning shot across Trump’s bow.

Despite modifying Chutkan’s gag order, the appeals court was as solicitous of her as it could be, at one point writing: “In so holding, we fully credit the district court’s care and efforts while handling this complex case to bring the Order within First Amendment bounds.”

In short, the appeals court seemed to be saying to Chutkan: We’ve got your back on this.

How Critical Is The March Trial Date?

It’s super critical! But let me offer another caveat for you to have on your radar.

The judge in the Georgia RICO cases has signaled that the August trial date Atlanta DA Fani Willis wants may not be “realistic.” (While that’s disappointing, it’s also true that even with an August start date Willis didn’t expect that trial to be completed until early 2025, well after the 2024 election.)

If the Georgia case gets pushed back, as seems quite possible, that opens up more of the summer calendar for Chutkan to work with if her March 2024 trial date becomes untenable.

Trump Has Already Tested Modified Gag Order

Trump called his former Attorney General Bill Barr, a likely witness in the Jan. 6 case, a “coward” in public remarks over the weekend.

Rudy G Defamation Case Goes To Trial

The defamation trial of Rudy Giuliani in the case brought by Georgia election workers Shaye Moss and Ruby Freeman is set to begin today in DC.

Trump Bluff Called

With Donald Trump promising to testify today in the New York civil fraud case against him, it was put up or shut up time – and he shut up. Trump on Sunday posted an elaborate rationale on Truth Social for why he wouldn’t testify after all, but it was never clear he was really going to take the risk of being cross-examined at this late stage of the trial.

Stick This In A Time Capsule

For the historian of the future trying to make sense of the Republican Party falling sway to Donald Trump and persisting in the self-delusion and excuse-making as late as 2023, the last 2 1/2 minutes of this clip will stand as peak example:

Texas Supreme Court Leaves Pregnant Woman In Limbo

In that horrible Texas abortion case that was the focus of the previous Morning Memo, the Texas Supreme Court late Friday put a temporary hold on the lower court ruling that a pregnant 31-year-old Dallas woman qualified for one of the exceptions to the state’s abortion ban.

It’s not clear when the state’s high court will rule or if the woman will wait around to find out or try to obtain an out-of-state abortion. The fetus has a fatal disorder, and the mother’s future prospect of bearing a child is at risk if she carries to term.

The case highlights the absurdity of the the so-called “exceptions” to abortion bans and the unworkability of courts adjudicating health care decisions in real time.

2024 Ephemera

• WSJ poll: Trump leads Biden 47%-43% among registered voters nationwide in hypothetical one-on-one general election matchup.
• Rolling Stone: Inside Trump’s Plot To Corrupt the 2024 Election With ‘Garbage’ Data
• WaPo: Small segment of voters will wield outsize power in 2024 presidential race

Tucker Carlson Tries To Stay Relevant

The exiled Fox News host is launching what is being billed as a “subscription streaming service” but which seems to consist of posting videos to his website:

Tucker Carlson Network, whose logo resembles a red pill, will cost $9 a month—or $72 a year—and will initially be solely available through Carlson’s website, they said. Some of the content will be accessible without a subscription and will be ad-supported, while some interviews and monologues will be available exclusively to subscribers, who will have access to that content without ads.

The Ol’ Coverup By Indictment Trick

He Said It

Not a fan of the “see, even bad faith actors are calling it BS” genre, but if ol’ Peter Doocy ain’t convinced, well:

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