ARREST NUMBER THREE — Former President DONALD TRUMP is scheduled to appear in person at 4 p.m. at the E. Barrett Prettyman U.S. Courthouse in Washington, where he will be arraigned on four criminal charges related to his efforts to subvert the 2020 presidential election.
Bicycle barriers and other visible security measures appeared around the court overnight. Trump is expected to plead not guilty.
“[Special counsel JACK] SMITH has accused Trump of orchestrating a breathtakingly broad campaign to unravel American democracy and cling to power despite decisively losing the 2020 election. In service of that goal, Smith says, Trump deputized six co-conspirators — including attorneys RUDY GIULIANI, JOHN EASTMAN, SIDNEY POWELL and KENNETH CHESEBRO — to carry out a campaign of disinformation, cloaked in legal action, to convince state legislatures, Congress and then-Vice President MIKE PENCE to block President JOE BIDEN’s election. …
“The failure of that effort culminated in a burst of rage, with thousands of Trump’s faithful storming past police barricades and into the Capitol, while Trump — according to Smith — exploited the violence to continue salvaging his schemes.”
THE TRUMP DEFENSE TAKES SHAPE — In social media posts and interviews, both Trump and one of his main lawyers, JOHN LAURO, have now outlined how they will respond to the new Smith indictment.
In an interview with NPR, Lauro, a white-collar criminal defense attorney with over four decades of experience, detailed five pillars of his defense:
1. SLOW IT DOWN
While Smith said he will push for a speedy trial, Lauro is signaling the opposite. He is emphasizing the complexity of the case, which took three and a half years to put together, and the enormous amount of time it will take to interview witnesses and sift through the thousands of pages of documents the government will soon hand over.
“[W]hat we want is a just trial, not simply a speedy trial,” Lauro said. “There’s no need to railroad any defendant in the United States. And we’re hoping the Justice Department will recognize that justice is more important than speed.”
While Smith has avoided any discussion of the presidential election, Lauro, following Trump’s lead, wants U.S. District Court Judge TANYA CHUTKAN to take into consideration the fact that Trump is a candidate and likely GOP nominee.
“The Biden administration decided to bring an indictment against a political opponent in the middle of a campaign,” he told NPR. “And the thought of President Trump having to spend his time at trial instead of actively debating and talking about the issues against his political opponent is something that I think the judge is going to consider.”
There is no obvious precedent for Chutkan to lean on. As Josh Gerstein told Playbook last night, “What is a judge supposed to do when trying to balance the schedule of a front-running presidential candidate, at least in the primary, with the needs of the court to move forward with a criminal case?”
Lauro addressed the widespread skepticism that Trump has much of a First Amendment defense, arguing that “[w]hen you look at this indictment, it doesn’t really say much other than President Trump was exercising his right to talk about the issues and advocate politically for his belief that the election was stolen and was improperly run. He got advice from counsel — very, very wise and learned counsel — on a variety of constitutional and legal issues. So, it’s a very straightforward defense that he had every right to advocate for a position that he believed in and his supporters believed in.
“And this is the first time in the history of the United States where a sitting administration is criminalizing speech against a prior administration. It’s really quite unprecedented and it really will politicize the criminal justice system, which is terrible to see. … And free speech encompasses political advocacy, which often involves acting on that free speech.”
Under the obstruction statute used to indict Trump, Smith must prove corrupt intent — that the former president knew the election was conducted fairly and so he executed a criminal conspiracy to overturn the results. The House Jan. 6 committee, with an eye on that law, long ago drilled down into every scrap of evidence they could find that showed Trump knew he lost the election and there was no outcome-determinative fraud. This evidence, with a few new details, is exhaustively laid out in the 45-page indictment.
(Another data point for the corrupt intent side of the ledger:Last night on CNN, Trump Attorney General BILL BARR told Kaitlan Collins that he also believed Trump knew this.)
Not so fast, insists Lauro: “What we will argue to the jury, and we’ll win, is that President Trump was arguing for the truth to come out in that election cycle rather than the truth to be denied. Even at the end, when he asked Mike Pence to pause the voting, he asked that it be sent back to the states so that the states, in exercising their truth-seeking function, could either audit or recertify.”
A corollary to this is what Lauro has described as an advice of counsel defense, with Trump trying to prove there was no corrupt intent because he was simply relying on legal advice from lawyers such as Eastman. Smith has clearly anticipated this as five of the six co-conspirators described in the indictment are these same Trump lawyers, who Smith alleges were all in on it. More on this from WaPo’s Greg Sargent
5. ATTACK D.C.
But the argument that Trump and his GOP allies are giving the most attention is that Washington is an inherently unfair venue for a trial.
Here’s how Trump put it last night on Truth Socal: “The latest Fake ‘case’ brought by Crooked Joe Biden & Deranged Jack Smith will hopefully be moved to an impartial Venue, such as the politically unbiased nearby State of West Virginia! IMPOSSIBLE to get a fair trial in Washington, D.C., which is over 95% anti-Trump, & for which I have called for a Federal TAKEOVER in order to bring our Capital back to Greatness. It is now a high crime embarrassment to our Nation and, indeed, the World. This Indictment is all about Election Interference!!!”
The “95%” number presumably derives from the 2020 election results in DC, which voted 92% to 4% for Biden over Trump. (West Virginia voted 69% to 30% for Trump over Biden.)
Hosts on Fox News and Republicans such as South Carolina Sen. LINDSEY GRAHAM and Florida Gov. RON DeSANTIS have been all over making a similar case about how no D.C. jury could ever be legitimate.
Lauro made a slightly more nuanced case yesterday. “We’re looking for a more diverse area that has a more balanced political jury pool,” he told NPR. “You know, the country is very, very divided politically right now, this is a very divisive indictment. It goes to issues of free speech and political activity. So, we’re looking for a jury that will be more balanced. And West Virginia was a state that was more evenly divided. And we’re hoping for a jury that doesn’t come with any implicit or explicit bias or prejudice. So it makes sense to go to a place like West Virginia.”
This might make for a good line at a debate in Iowa, but will Judge Chutkan go for it? Doubtful. Several Jan. 6 defendants tried in D.C. made similar requests for a change of venue and they were unsuccessful. (Chutkan herself handled several Jan. 6 cases, including one of Trump’s fights with the Jan. 6 committee.)
“I cannot see that argument flying with any judge in a federal court in D.C.,” Josh Gerstein tells us. “They’ve been presented with these arguments, similar arguments, in connection with the Jan. 6 cases … and they said essentially that they’re not going to use political polling to determine whether a venue is appropriate for a criminal trial. Whether 90% or 60% of people in D.C. voted for Trump’s opponent in 2020 or 2016 was not relevant to that analysis.”
Josh adds that judges did take more seriously arguments about the events of Jan. 6 having a more traumatic impact on Washingtonians. But that’s what voir dire is for.
“I think if you make a politically framed argument around poll numbers, it’s going to get precisely nowhere in Trump’s case,” Josh says. “So I don’t think people should expect that to happen. And the other issue around the trauma of the event has generally just been dealt with by singling out and excusing individual jurors.”
FOCUS ON THE FRINGE — “Could third-party candidates tip the scales in Trump’s favor, again?” by Holly Otterbein and Jonathan Lemire: “Though the president’s reelection team has preached confidence, some Democratic officials and strategists worry that the urgency to vote for Biden has dissipated for some voters since Trump left the White House. They are anxious that young people, in particular, might be receptive to [CORNEL] WEST’s message.”
THE PASSION OF CHRISTIE — CHRIS CHRISTIE is the guest on today’s episode of Kara Swisher’s twice-weekly interview podcast by N.Y. Mag, on which he reveals that he was questioned in one of the Trump investigations some weeks ago, though he said he couldn’t disclose which inquiry. “They were trying to get a handle on what I knew about his knowledge of the reality of the election results,” Christie said of the case he was questioned in.
On why other GOP candidates won’t call out Trump: “I think that some of them are unwilling to do it because they don’t think it’s politically smart, some of them are auditioning for a potential Trump administration, and I think some of them just aren’t able to do it: they just physically aren’t equipped to be able to be in that combat.” Listen to the full episode
FIRST IN PLAYBOOK — Christie will be interviewed by CBS’ Robert Costa on the campaign, Trump and more for a segment on this week’s “CBS News Sunday Morning.”
PHOTO OF THE DAY
STAFFING UP — The Biden campaign is beefing up its fundraising team, bringing on three DNC alums to help rake in the historic funds some Democrats think he and outside groups will need for his reelection bid in 2024, Holly Otterbein scoops. Biden is bringing on COLLEEN COFFEY and MICHAEL PRATT to serve as his campaign’s finance co-directors and JESSICA PORTER to be his grassroots fundraising director, rounding out a leadership group heading his finance operation amid a lean campaign overall. Coffey and Pratt are also alums of the 2020 campaign.
THE PENCE LITMUS TEST — Trump’s indictment has injected new life into the presidential race and “placed a sharper focus on Pence’s actions leading up to and on Jan. 6, including the revelation that he kept contemporaneous notes,” Adam Wren, Sally Goldenberg and Natalie Allison write. “It also elevated the idea that Pence himself would be a litmus test for the rest of the field: Would they have made a different decision that day? Speaking to reporters on Wednesday, Pence showed no regrets or equivocations in the hours after Smith unveiled his indictment.”
THAT’S DEBATABLE — DeSantis last night agreed to take on California Gov. GAVIN NEWSOM in a debate moderated by Fox News’ SEAN HANNITY. “Absolutely, I’m game. Let’s get it done. Just tell me when and where,” DeSantis told Hannity. Newsom also sent a letter with the full outline for the debate rules, which he proposed as a 90-minute affair, taped live without the aid of notes or other documents on stage and held in either Nevada, Georgia or North Carolina — without a studio audience — on either Nov. 8 or 10. Read the full letter … More from Christopher Cadelago
RATING RILE-UP — When Biden officials met with analysts at Fitch Ratings ahead of the organization’s recent release, they hoped that the aversion of a debt default earlier this year wouldn’t reflect negatively on the economy. Later, they received a draft report from Fitch, but it didn’t note how the final rating would fall. So when Monday’s report downgraded the U.S. credit rating for the first time in more than a decade, Biden aides were “shocked,” WaPo’s Jeff Stein reports, leaving senior officials like Treasury Secretary JANET YELLEN, NEC Director LAEL BRAINARD and CEA Chair JARED BERNSTEIN scrambling on Tuesday to coordinate a response, “which involved striking back at the ratings agency as soon as its analysis was released.”
THE TIES THAT BIND — BARACK OBAMA told Biden in a private lunch meeting recently that he is concerned about Trump’s campaign strength, WaPo’s Tyler Pager reports, “including an intensely loyal following, a Trump-friendly conservative media ecosystem and a polarized country — underlining his worry that Trump could be a more formidable candidate than many Democrats realize.”
Obama then “promised to do all he could to help the president get reelected,” a pledge “at a time when Biden is eager to lock down promises of help from top Democrats, among whom Obama is easily the biggest star, for what is likely to be a hard-fought reelection race.”
NIGHT OF THE HUNTER — “Documents in failed Hunter Biden plea agreement made public,” by NBC’s Dareh Gregorian and Tom Winter: “The plea deal called for Biden to plead guilty to two counts of failing to pay his taxes in return for prosecutors recommending a sentence of probation. A separate gun charge for illegally owning a Colt Cobra .38 Special handgun would have been dropped in two years if Biden honored the terms of what’s known as a diversion agreement.”
SAD READ — “For an Ailing Feinstein, a Fight Over the Family Fortune,” by NYT’s Tim Arango and Shawn Hubler: “As DIANNE FEINSTEIN, 90, struggles to function in the Senate, a dispute within her family over control of her late husband’s estate is another difficult chapter at the end of a long career.”
OVERSERVED — “Special counsel asks if Nauta’s attorney has too many Mar-a-Lago clients,” by WaPo’s Perry Stein and Josh Dawsey: “In a court filing Wednesday, prosecutors said STANLEY WOODWARD — the lawyer for Trump valet WALTINE ‘WALT’ NAUTA — has represented at least seven other clients whom prosecutors have interviewed about Trump’s alleged efforts to keep classified documents in defiance of the government’s demand they be returned. Two of Woodward’s clients could be called as government witnesses in the trial, the filing said.”
FOR YOUR RADAR — Anthony Anderson, Yvonne Orji and Nicole Byerwill headline DC’s new “Because They’re Funny” comedy festival in October. The event will be produced by NICE CROWD, the folks behind the American Black Film Festival.
MEDIA MOVE — Coleen O’Lear as senior director of curation and platforms for Yahoo News. She most recently was head of curation and platforms at WaPo.
TRANSITIONS — Andrea Ducas is joining the Center for American Progress as VP of health policy. She most recently was senior program officer at the Robert Wood Johnson Foundation. … Oliver Kim is now senior director of public policy for Corewell Health’s government affairs team. He most recently was director of health policy at the Bipartisan Policy Center and currently is an adjunct professor of law with the University of Pittsburgh.
WELCOME TO THE WORLD — Lee Hudson, defense reporter at POLITICO, and Lawrence Gordin, senior contracts strategist at Palantir Technologies, welcomed Luke Hudson Gordin on Saturday. Pic
HAPPY BIRTHDAY: Sen. Chris Murphy (D-Conn.) (5-0) … Rep. Gabe Vasquez (D-N.M.) … U.S. Ambassador to Chile Bernadette Meehan … Kaiser Health News’ Rachana Pradhan … Matthew Foldi … Tom Qualtere … ABC’s Ben Siegel and John Parkinson … Scott Parkinson … Claire Olszewski of the Obama Foundation … Jeff Dressler of SoftBank … Tom Freedman … Matt Compton … former Sen. Roland Burris (D-Ill.) … Jordan Burke … Erikka Knuti … Graham MacGillivray … Dmitri Mehlhorn … Jessica Ennis … Brian Morgenstern … City Journal’s Brian Anderson … NYT’s Clarissa Matthews… Joe Ramallo of Sen. Bill Cassidy’s (R-La.) office … Jay Caruso … SKDK’s Rachael Shackelford … Reuters’ Brad Brooks … CNN’s Joe Ruiz … Ken Nahigian … DNC’s Emma Bailey … James Wegmann … Jacob Weisberg of Pushkin Industries … Shaadi Ahmadzadeh … Andrew Craft
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