Trump’s J6 Case Roars Back To Life Right Before Election Day

It seems to be Donald Trump’s karma that Black women are going to prove his undoing. He’s been a blatant racist and misogynist his entire life and maybe that’s finally coming back to bite him in his ample derriere on some cosmic level. It certainly appears to be the case. Judge Tanya Chutkan got the okay from the appellete court to proceed with the January 6 insurrection case and she is not losing any time in getting it moving. She set a status report for August 9, which is next week and a scheduling hearing for August 16. Like the proverbial rolling stone, she is not gathering moss.

So, Trumpty has to: 1. Watch the elections interference case out of the corner of his eye, while 2. Trying to figure out how to either bully Kamala Harris into a debate on Fox News or keep the debate date on September 10 with ABC, while 3. Keeping the grift going with the kool-aide glasses with the bullet embedded, while 4. Figuring out who to run his campaign since those *#%@$ idiots LaCivita and Wiles are letting him down, while 5. J.D. Vance continues to tank him. That’s a piece of karma, too. It’s been said Trump tried to get his last vice president hung, now his current vice president is hanging him. Poor Donald. Meanwhile, let the incomparable Joyce Vance explain coming court attractions to you. This is the best context you’ll find anywhere.

After so much delay—the case has been stagnant since early December of 2023 when Trump first appealed the presidential immunity issue—Judge Chutkan is ready for the parties to get back to work so she can, as the Court of Appeals directed her to, engage in “further proceedings consistent with the Supreme Court’s opinion” in the immunity case. This morning’s order explicitly directs the parties that “If necessary, the parties may explain any disagreements in separate sections of the report.” That’s my use of italics, not the Judge’s, but the phrase seems to suggest to any lawyers who are listening that she hopes it won’t, in fact, be necessary.

That means she must decide which, if any, of the four counts the government has charged Trump with should be dismissed. If you need a quick refresher, he is charged with:

• Conspiracy to Defraud the United States, in violation of 18 U.S.C. § 371
• Conspiracy to Obstruct an Official Proceeding, in violation of 18 U.S.C. § 1512(k)
• Obstruction of, and Attempt to Obstruct, an Official Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2); and
• Conspiracy Against Rights, in violation of 18 U.S.C. § 241

Trump will undoubtedly argue all charges must be dismissed. The government will likely argue that none of them are exclusively based on official acts, although they may agree to strike some of the allegations in the complaint that focus on official acts. Prosecutors will also likely have to deal with the issue of whether the Court’s opinion last term in Fischer v. U.S. impacts counts 2 and 3 of the indictment.

The majority in Fischer concluded that the obstruction of an official proceeding provision that was passed in 2002 in the wake of the Enron scandal only applies to cases where a defendant attempted to tamper or interfere with documents or other records related to a government proceeding. Fischer involved a January 6 riot participant and concluded he could not be properly charged because he didn’t interfere with documents. Prosecutors should be able to thread that needle here because of the use of documents in connection with the slates of fake electors. The Fischer Court wrote that “it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.” Nonetheless, expect Trump to mount a battle over that issue.

And then there is the issue of what evidence the government is entitled to use at trial. In the immunity appeal, the Court ruled prosecutors could not use evidence of official acts, even to prove crimes that consist of unofficial ones. Many issues about admissibility of evidence are reserved for trial, but legal issues like whether evidence was obtained in violation of the Fourth Amendment prohibition against unlawful search and seizures can be entertained before trial. For instance, judges frequently decide issues about the use of evidence obtained pursuant to a search warrant in what’s called a suppression hearing.

In the current situation, both sides may well agree that there is no value in waiting until trial to decide questions about the admissibility of evidence Trump challenges under this new presidential immunity doctrine. Trump would want to obtain the early wins he will undoubtedly receive on some of the evidence, and the government will want certainty about what it can and can’t use. So this could be the rare situation with Trump where both sides agree.

The reason judges frequently reserve questions about the admissibility of evidence for trial is that the issue often involves whether the evidence is relevant—does it help prove or disprove an element of the crime the government has charged—and even if relevant, should it be excluded because it is unduly prejudicial. This situation is different. Issues of relevance and undue prejudice will still exist at trial for any evidence Trump challenges on immunity grounds, but the immunity issue is a threshold issue that has to be decided first. Any evidence Judge Chutkan tentatively blesses could still be the subject of objections at trial by Trump on the grounds of relevance and undue prejudice. The application of the Federal Rules of Evidence can get complicated even in simple cases, and the wrinkle added by the Court’s ruling in the immunity case will make it even more layered here. There is a lot of work ahead for the court.

Yes, indeed there is. But look on the incredibly bright side. This kind of publicity, this concentration on the issues of what Trump did on or about January 6, during the election, is going to be priceless. It’s pretty much universally agreed that if the January 6 trial were held prior to the election that there’s no way that Trump could possibly win. We may find out the veracity of that theory in the weeks and months ahead.

Regrettably, without cameras in federal court, we will not be able to observe any proceedings Judge Chutkan conducts. But the status report and any briefs filed by both sides should be public, and we will continue to get the extraordinary caliber of reporting from inside of the courtroom that so many journalists work hard to provide. It’s not clear how far the court will get before the election, and nothing else will have the impact a jury’s verdict would, but the proceedings will keep Trump’s conduct during the 2020 election squarely where it belongs, in front of the public.

And the dirty details of that behavior may well tank him in 2024. I think Trump is toast. And he’s going to become something beyond toast. He’s about to become a deep fat fried toast sandwich, he is so toast.

And when he loses the election, then he’ll be toast on his way to prison, when the other trials take place. And then I guess we see if President Harris pardons him at that time.

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