Left: Special counsel Jack Smith turns from the podium after speaking about an indictment of former President Donald Trump (AP Photo/Jacquelyn Martin). Center: FILE – This undated photo provided by the Administrative Office of the U.S. Courts shows U.S. District Judge Tanya Chutkan (Administrative Office of the U.S. Courts via AP, File). Right: Trump stands on stage at the Libertarian National Convention in May 2024 (AP Photo/Jose Luis Magana).
The Washington, D.C. judge overseeing former President Donald Trump’s election subversion case has warned him that he might face criminal consequences for the actions of Jan. 6 rioters – even absent any kind of direct encouragement on his part.
In a 50-page order, U.S. District Judge Tanya Chutkan on Thursday dispensed with various outstanding motions intent on prying information away from the government. In a mixed-bag ruling, the court granted Trump’s requests in part – and denied them in part.
Likely unexpected by the defense was the court musing about the relative strength of one of the government’s cornerstone arguments. Namely, the idea that Trump himself bears responsibility for the unprecedented attack on the U.S. Capitol Complex.
“It is entirely conceivable, for instance, that Defendant could share responsibility for the events of January 6 without such express authorization of rioters’ criminal actions,” Chutkan mused.
Late last November, Trump’s attorneys filed two separate motions at issue in the present order. The first motion aimed to compel the government to produce certain discovery materials. The second motion sought to force the government to clarify the scope of – meaning a list of anyone involved with – the prosecution team.
In the Thursday order, both of those outstanding defense motions were essentially split down the middle. And Chutkan offered specific guidance for the government to comply with each defense request – spanning some two-and-a-half pages.
The court’s observation about Trump’s responsibility for rioters’ conduct came in the context of a discussion over the defense’s requests “in which prosecutors, law enforcement, and other officials made statements that are inconsistent with the prosecution’s position regarding responsibility for January 6.”
To hear the special counsel tell it, Trump “is responsible for the events at the Capitol on January 6.” The superseding indictment refers to Jan. 6 as “the culmination of the defendant’s criminal conspiracies to overturn the legitimate results of the presidential election.”
In other words, the government says the various Trump-led and Trump-allied efforts to overturn the 2020 election results – inclusive of pressure campaigns and the so-called “alternate” or fake electors plan – eventually led to the pro-Trump violence at the Capitol.
More Law&Crime coverage: ‘Defendant fails’: Jack Smith rips Trump’s ‘half-hearted’ dismissal bid in Jan. 6 case for being wrong on the law
Trump wants Smith to be forced to release any documents – even private documents – that might suggest the government or law enforcement ever expressed doubt about drawing such direct lines.
In legal terms, the defense believes any such statements would be “exculpatory under Brady because they undercut one of the prosecution’s arguments.” In U.S. criminal law, Brady materials are any kind of documents in law enforcement’s possession that might, even in hindsight, tend to support a defendant’s innocence or otherwise be favorable to the defense. The duty to provide such documents is considered “affirmative,” which means it is obligatory on the government – and it applies at all stages of a criminal case.
In his motion, Trump listed, as an example, one prosecutor’s closing statement in a separate Jan. 6-related prosecution that “it is essentially irrelevant in this case what you think about President Trump’s conduct on that day.” Another example came from another prosecutor, who said: “The President didn’t take action” in the days leading up to the attack.
The statements Trump’s attorneys have pointed to in their motion are not, however, exculpatory at all, according to the court.
“[P]rosecutors whose statements Defendant seeks were not fact witnesses in the January 6 rioter cases, nor does he suggest that their statements reflect personal knowledge that could be ‘admissible against the government as substantive evidence’ in this case,” Chutkan ruled.
Then, the court took the analysis further – by taking issue with the basic legal argument advanced by the defense.
The court explains, at length:
In any event, the court is not persuaded that the USAO-DC prosecutors’ statements actually contradict the Government’s position in this case. It is entirely conceivable, for instance, that Defendant could share responsibility for the events of January 6 without such express authorization of rioters’ criminal actions that they could claim entrapment-by-estoppel or public authority defenses. Likewise, Defendant could still share that responsibility [for Jan. 6] even though he did not take certain actions that some rioters had hoped for—i.e., invoking the Insurrection Act to “stop the election, to call up the military and groups like the Oath Keepers to seize voting machines, to throw out the result, and to hold a new election.” Nor is there a contradiction in a prosecutor stating that Defendant’s conduct was “essentially irrelevant” to a January 6 rioter’s case.
In an explicit show of favor, Chutkan then immediately quotes Smith’s own opposition to the defense argument: “As the Government has explained, its position in other January 6 cases that the defendant’s actions did not absolve any individual rioter of responsibility for that rioter’s actions—even if the rioter took them at the defendant’s direction—is in no way inconsistent with the indictment’s allegations here.”
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