ancianita
ancianita's JournalHamas aims to kill Saudi deal that would help Palestinians, says U.S. Peace Envoy Dennis Ross
Dennis Ross explains why/how Hamas's long-standing aim to scuttle peace deals is linked to recent attacks and its fear of a viable Israel-Saudi deal.
President Biden, a grateful nation stands with you.
Big ups to Ayman Mohyeldin -- MSNBC's Expert on the Middle East.
Right now, on Alex Wagner's hour, he's brilliant. For historical context of Middle East politics, he's now my go-to tv source.
... he currently hosts Ayman on weekend evenings on MSNBC ...
He previously worked for Al Jazeera and CNN. He was one of the first Western journalists allowed to enter and report on the handing over and trial of the deposed President of Iraq Saddam Hussein by the Iraqi Interim Government for crimes against humanity.[2] Mohyeldin has also covered the 200809 Gaza War[3] as well as the Arab Spring....
UPDATE 4 -- JACK SMITH DC TRIAL
Nice we can see a couple of the actual linked pages here on DU.
1.
previous posts:
https://www.democraticunderground.com/100218351073
https://www.democraticunderground.com/100218344987
https://www.democraticunderground.com/100218318549
https://www.democraticunderground.com/100218228229
Heres the case:
2.
DC Federal United States v. TRUMP, 1:23-cr-00257, (D.D.C.) March 4 2024
U.S. Dist.(DC) Judge Tanya S. Chutkan E. Barrett Prettyman Courthouse
https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_Trump_(election_obstruction_case)
-- court docket
https://www.courtlistener.com/docket/67656604/united-states-v-trump/
3.
Heres Jack Smith's filing edited for readability:
10/10/2023 Docket Entry #98
https://www.courtlistener.com/docket/67656604/98/united-states-v-trump/
Main Document, full text. Any italics are from the docket's documents.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA *
*
v. * CRIMINAL NO. 23-cr-257 (TSC)
*
DONALD J. TRUMP, *
*
Defendant. *
*
GOVERNMENTS OPPOSED MOTION FOR FORMAL PRETRIAL NOTICE OF
THE DEFENDANTS INTENT TO RELY ON ADVICE-OF-COUNSEL DEFENSE
The defendant has provided public notice that he intends to rely on an advice-of-counsel
defense at trial. When a defendant invokes such a defense in court, he waives attorney-client
privilege for all communications concerning that defense, and the Government is entitled to
additional discovery and may conduct further investigation, both of which may require further
litigation and briefing. To prevent disruption of the pretrial schedule and delay of the trial, the
Court should exercise its inherent authority to require the defendant to provide notice in court of
his intent to assert such a defense by the date exhibit lists are due, December 18, 2023. Through
counsel, the defendant opposes this motion.
I. Background
During the course of the Governments investigation, at least 25 witnesses withheld
information, communications, and documents based on assertions of the attorney-client privilege
under circumstances where the privilege holder appears to be the defendant or his 2020 presidential
campaign. These included co-conspirators, former campaign employees, the campaign itself,
outside attorneys, a non-attorney intermediary, and even a family member of the defendant.
In the time since the grand jury returned the indictment against the defendant on August 1,
2023, the defendant and his counsel have repeatedly and publicly announced that he intends to
page 2 of 14
assert the advice of counsel as a central component of his defense at trial. On the night of August
1, for example, defense counsel told a national audience on Fox News that the defendant had an
advice of counsel, a very detailed memorandum from a constitutional expert. 1 Hours later on
CNN, defense counsel argued that Mr. Trump had the advice of counsel, Mr. Eastman, who was
one of the most respected constitutional scholars in the United States, giving him advice and
guidance. 2
The following day defense counsel was asked on National Public Radio to talk a little
about your legal strategy and give us a summary of your legal defense to these criminal
charges. 3 Defense counsel responded, Well, its not a big surprise, and the defendant got
advice from counsel very, very wise and learned counsel on a variety of constitutional and
legal issues.
Three days after the defendants arraignment, defense counsel made appearances on a
circuit of Sunday news shows. On NBC, defense counsel explained that what [the defendant]s
being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman
and one thing for certain, President Trump acted under the advice of counsel when he petitioned,
under the First Amendment, petitioned Mr. Pence . . . [a]nd thats legally protected speech. 4
Likewise, on CBS, defense counsel claimed that the defendant believed a certain course of action
described in the indictment was appropriate because he was following the advice of John
1
Fox News, Aug. 1, 2023, at minute 3:03, available at
https://www.foxnews.com/video/6332255292112.
2
CNN, Aug. 1, 2023, at minute 2:20, available at
.
3
NPR All Things Considered, Aug. 2, 2023, available at
https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.
4
Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-the-
press/meet-press-august-6-2023-n1307001.
Page 3 of 14
Eastman. 5 And on CNN, defense counsel argued that the conduct alleged in the indictment was
sanctioned because the defendant was following the advice of his lawyer. 6 Weeks later, the
defendant himself explained in a Twitter interview that we had some lawyers, not all, we had
some lawyers that said that a particular course of action described in the indictment was
appropriate. 7
On August 28, 2023, the Court entered the Pretrial Order to organize pretrial proceedings.
See ECF No. 39. Among other reasoned deadlines therein, the Court set December 18, 2023, as
the date for the parties to exchange lists of exhibits they intend to use in their cases in chief. Id.
¶ 8. By that date, the defendant will be required to identify (and, if he has not already done so,
produce) any exhibits to be used in his case-in-chief, including ones supportive of an advice-of-
counsel defense.
II. Applicable Law
In order to assert at trial an advice-of-counsel defensean affirmative defense, United
States v. White, 887 F.2d 267, 270 (D.C. Cir. 1989)the defendant will be required to introduce[]
evidence that (1) he relied in good faith on the counsels advice that his course of conduct was
legal, and (2) he made full disclosure of all material facts to his attorney before receiving the
advice at issue, United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 2019) (quoting United
States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)). If the defendant satisfies the burden to
produce evidence that would support an advice-of-counsel defense, the Court should instruct the
5
Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at
https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.
6
CNN, Aug. 6, 2023, at minute 7:58, available at
https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.
7
Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available
at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.
Page 4 of 14
jury on the defense, and the Government retains the burden of proving the defendants mens rea
beyond a reasonable doubt. See United States v. Westbrooks, 780 F.3d 593, 596 (4th Cir. 2015)
(defendant bears burden of production while Government bears burden of proof); United States v.
Dallmann, 433 F. Supp. 3d 804, 810 (E.D. Va. 2020) (the defendant bears the initial burden of
production, but the prosecution always retains the burden of persuasion, namely the burden of
proving the defendants guilty state of mind beyond a reasonable doubt).
In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege
on all communications concerning the defense. See White, 887 F.2d at 270; United States v.
Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the
defendant must disclose to the Government (1) all communications or evidence the defendant
intends to rely on to establish the defense and (2) any otherwise-privileged communications the
defendant does not intend to use at trial, but that are relevant to proving or undermining it.
Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22-
cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is
for information defendant submitted to the attorney on which the attorneys advice is based, the
attorneys advice relied on by the defendant, and any information that would undermine the
defense); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (This
disclosure should include not only those documents which support [defendants] defense, but also
all documents (including attorney-client and attorney work product documents) that might
impeach or undermine such a defense.); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y.
Jan. 18, 2018) (quoting Hatfield).
Accordingly, waiting until the eve of trialor, worse, when jeopardy attachesto raise an
advice-of-counsel defense risks causing substantial disruption and delay, particularly in this case
Page 5 of 14
given the number of attorneys involved. To avoid such disruption, courts in this District and others
have concluded that, while the Federal Rules of Criminal Procedure do not address this defense
specifically, judges retain inherent authority to order defendants to provide formal notice of an
advice-of-counsel defense before trial. See Crowder, 325 F. Supp. 3d at 138 (Courts have broad
discretion to impose disclosure and notice requirements outside the [Federal Rules of Criminal
Procedure].); Rhodes, ECF No. 318 (imposing pretrial notice requirement and citing Crowder);
Dallman, 433 F. Supp. 3d at 812 (The majority of district courts that have considered the question
have sensibly exercised their inherent authority to impose a pretrial notice and discovery
requirement regarding the advice-of-counsel defense . . . .) (collecting cases); United States v.
Mubayyid, 2007 WL 1826067, at *2 (D. Mass. June 22, 2007) (Upon review of the cases, the
Court concludes that it may, at least under some circumstances, order that defendant give notice
of an intent to rely on an advice-of-counsel defense.); United States v. Cooper, 283 F. Supp. 2d
1215, 1225 (D. Kan. 2003) (ordering defendant who indicated intention to rely on advice-of-
counsel defense to provide pretrial disclosure if he intends to rely on the defense); Hatfield, 2010
WL 183522, at *13 (requiring defendants to provide pretrial notice and disclosure of advice-of-
counsel defense); Scali, 2018 WL 461441, at *8 (same and scheduling hearing on whether the
Defendant has proffered the factual prerequisites of an advice of counsel Defense); United States
v. Crinel, 2016 WL 6441249, at *12 (E.D. La. Nov. 1, 2016) (requiring defendant to file pretrial
motion if he wishes to assert advice-of-counsel defense); United States v. Impastato, 535 F. Supp.
2d 732, 740 (E.D. La. 2008) (same).
A number of courts, in cases unlike this one, have denied such notice. See United States
v. Ray, 2021 WL 5493839, at *4 (S.D.N.Y. Nov. 22, 2021) (declining to impose notice requirement
and collecting cases showing no consensus among federal courts); United States v. Wilkerson,
Page 6 of 14
388 F. Supp. 3d 969, 974-75 (E.D. Tenn. 2019) (finding no good cause to compel the defendants
to provide notice before trial); United States v. Atias, 2017 WL 563978, at *4 (E.D.N.Y. Feb. 10,
2017) (concluding that prosecution in the case had not established a right to pretrial notice);
United States v. Meredith, 2014 WL 897373, at *1 (E.D. Ky. Mar. 6, 2014) (declining to require
notice and discovery of the defense pretrial); United States v. Lacour, 2008 WL 5191596, at *1
n.1 (M.D. Fla. Dec. 10, 2008) (Defendants are not obligated to put on any defense, and, except
for certain [enumerated] defenses which must be disclosed prior to trial, Defendants are free to
make that decision at trial.).
Those out-of-circuit cases are readily distinguishable, and the factors animating their
contrary rulings are not present here. For example, some courts have refrained from requiring
notice because it would force the defendant to reveal an intended defense before trial. See
Meredith, 2014 WL 897373, at *1 (declining to require notice of advice-of-counsel defense
because it would require the defendant to reveal his trial strategy pretrial); Ray, 2021 WL
5493839, at *5 (declining to require the defendant to disclose his defense). But here the defendant
has broadcast to the world his intent to rely on this defense. Another court expressed concern that
requiring the defendant to give pretrial notice would not place reciprocal discovery burdens on
the Government. See Wilkerson, 388 F. Supp. 3d at 973. Here, as explained below, related non-
privileged discovery in the possession of the Government already has been provided to the
defendant as part of the Governments early and robust discovery productions. Courts have also
denied pretrial notice because the defense was unlikely to arise during the Governments case-in-
chief. See Ray, 2021 WL 5493839, at *7 (The Court need not now decide whether it has the
authority to require the defense to make an unequivocal assertion of privilege prior to the end of
the governments case .). Here though, given the nature of the charges and the defense
Page 7 of 14
statements regarding the defendants reliance on the advice of counsel, little doubt exists that the
defense will arise in opening statements and during the questioning of Government witnesses, and
may affect voir dire.
III. Argument
The defendant has made public statements regarding his forthcoming reliance on the
advice-of-counsel defense, but he has not provided formal notice of such a defense to the
Government or the Courtnotice that would trigger discovery obligations. See Scali, 2018 WL
461441, at *8 (where a defendant had signaled his unequivocal[] intent to rely on an advice of
counsel defense in his pleadings, district court concluded that defendant had triggered pretrial
discovery obligation). By December 18, 2023, however, the defendant is required to produce any
exhibits he intends to introduce in his case-in-chief, including ones on which to base an advice-of-
counsel defense. To promote fairness and efficiency, by that same date the defendant should be
required to provide formal notice to the Government of his intent to rely on the defense, and
promptly produce the concomitant required discovery. See Mubayyid, 2007 WL 1826067, at *2
([T]he requirement of a notice should be imposed only to the extent reasonably necessary to
ensure a fair and reasonably efficient trial).
A. Requiring Notice Promotes Fairness
Fairness dictates that the Government should be provided notice and discovery regarding
the defense sufficiently before trial. As the Mubayyid court found, the three enumerated defenses
in Rule 12.1 (alibi), Rule 12.2 (insanity), and Rule 12.3 (public authority) for which pretrial notice
is required under the Federal Rules of Criminal Procedure share a basic characteristic with the
advice-of-counsel defense: they are ordinarily fact-intensive defenses that are likely to create
substantial problems of fairness and efficiency if raised for the first time during the trial. Id. at
Page 8 of 14
2. See also Dallmann, 433 F. Supp. 3d at 811 (relying on reasoning of Mubayyid that advice-of-
counsel defense is fact-intensive and should be addressed before trial). Given the defendants
obligation to provide discovery that arises from advancing the defense, the defendant should not
be permitted to pepper his exhibit list with documents that support his advice-of-counsel defense,
be coy with formally noticing the defense so as to withhold discovery undermining it, and then
ambush the Government with the defense during trial. Cf. United States v. Hitselberger, 991 F.
Supp. 2d 91, 99 (D.C. Cir. 2013) (defendant does not have constitutional right to withhold all
defense and surprise the Government); United States v. Poindexter, 725 F. Supp. 13, 33-34 (D.D.C.
1989) (t is of course hardly a novel proposition that defendants in criminal cases may be
required to disclose elements of their defenses in advance of trial.).
In addition to having publicly advanced the defense, the defendant knows what information
the Government hasand does not havethat might support or undermine the defense. The
Government produced in discovery the privilege logs for each witness who withheld material on
the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the
defendants campaign was directly involved in discussions regarding privilege during the course
of the investigation. In other instances, the Government produced court orders requiring the
production of material claimed to be privileged. Compelling the defendant to provide notice, and
thereby discovery, would be reciprocal of what the Government already has produced. For
example, defense counsel publicly identified one attorney on whose advice the defense intends to
rely at trial, and the Government has produced in discovery substantial evidence regarding that
attorney and his advice, including relevant search warrant returns. 8 Any material relevant to that
8
That same attorney asserted an attorney-client privilege with the defendant and his
campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No.
8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (The evidence clearly supports an attorney-client
page 9 of 14
attorneys advice that remains shielded by the attorney-client privilege should be produced to the
Government at the earliest date to avoid disruption of the trial schedule.
In filing this motion, the Government does not concede that the defendant is entitled to
offer an advice-of-counsel defense at trial or that such a defense is supported by competent
evidence. Indeed, if the evidence disclosed by the defendant shows that the advice-of-counsel
defense is unavailable as a matter of law, in fairness the Government should be permitted to raise
that matter in advance of trial before questioning, evidence, and argument. See Rhodes, ECF No.
318 at 1 (Such disclosure is necessary to assess the viability of the defense.); United States v.
West, 392 F.3d 450, 456-57 (D.C. Cir. 2004) (The defense of advice of counsel necessarily fails
where counsel acts as an accomplice to the crime.). Juxtaposed against such a defense, the
indictment alleges that the defendant ignored the advice of attorneys and was not acting in good
faith, see ECF No. 1 ¶¶ 92-94, and the Court may need to hold a hearing in advance of trial to
determine if the defendant should be permitted to present evidence of the defense at trial. See Fed.
R. Evid. 104(a) (The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible.); Fed. R. Evid. 103(d) (To the extent
practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to
the jury by any means.).
Finally, while fairness warrants pretrial notice of the advice-of-counsel defense in this case,
requiring it imposes no unfairness on the defense. Given his extensive public statements, the
defendant cannot complain that formal notice will prematurely or unfairly reveal a hidden trial
strategy. And since the defendant must produce exhibits in support of an advice-of-counsel
defense by December 18 anyway, he will suffer no prejudice in also formally noticing his intent
relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.).
Page 10 of 14
to rely on the defense. After all, producing and identifying an otherwise-privileged document will
operate as a subject-matter waiver for all related communications. See White, 887 F.2d at 271
(Under the law of this circuit, a defendant can waive his attorney-client privilege by releasing
documents to . . . an investigative body at the pretrial stage.); In re Sealed Case, 121 F.3d 729,
741 (D.C. Cir. 1997) ([V]oluntary disclosure of privileged material subject to the attorney-client
privilege to unnecessary third parties in the attorney-client privilege context waives the privilege,
not only as to the specific communication disclosed but often as to all other communications
relating to the same subject matter. (quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir.
1982)); Protect Democracy Project, Inc. v. Natl Sec. Agency, 10 F.4th 879, 891 (D.C. Cir. 2021)
(describing the attorney-client privilege as taking an all-or-nothing approach to waiver (quoting
In re Sealed Case, 121 F.3d at 741)). Since waiver will occur otherwise by operation of law, there
is no unfairness to requiring defendant to provide formal notice, thereby triggering the requirement
to produce the potentially extensive discovery to which the Government will then be entitled.
B. Requiring Notice Promotes Efficiency
Requiring pretrial disclosure will prevent disruption of the Courts schedule and further
judicial efficiency to allow for the defendant to produce the discovery that such a defense would
entail. The defendant publicly claims to have had multiple lawyers providing advice in the post-
election period, and at least 25 witnesses withheld information on attorney-client privilege grounds
during the course of the Governments investigation. The process of disclosure, review, and
further investigation by the Government, followed by potential litigation as to the applicability of
the defense in this case, may be time-consuming, andif not done in advance of trialrisks
unnecessary interruption and delay. Crowder, 325 F. Supp. 3d at 138; Mubayyid, 2007 WL
1826067, at *1-2 (recognizing that once defense is invoked, the Government will need to obtain
Page 11 of 14
discovery and conduct investigations which could lead to delay). Moreover, the discovery and
investigation process surrounding the advice-of-counsel defense may raise issues requiring
additional briefing before trial in connection with the discovery process and the scope of the
defense itself. See Crowder, 325 F. Supp. 3d at 138. And if the defendant fails to provide timely
notice and discovery, the Court is within its discretion to preclude the defendant from asserting an
advice-of-counsel defense during trial. Id.; Rhodes, ECF No. 318 at 3 (The court may preclude
a defendant from asserting an advice-of-counsel defense if they fail to provide the notice required
by this Order.).
Pretrial notice is all the more warranted here because the defense is likely to arise during
the opening days of trial. For example, the defendant may wish to discuss it in his opening
statement. Or, on cross-examination of a witness in the Governments case-in-chief, the defendant
could elicit privileged information previously shielded from the Government, thus sandbagging
the Government and necessitating an interruption of testimony or an adjournment. There is no
benefit in allowing the defendant to wait until trial to advance his defense. Rather, efficiency
requires that the Government receive notice and discovery in advance of presenting its case so that
it can fairly prepare for direct and cross-examination and avoid recalling witnesses either in its
case-in-chief or in rebuttal. See, e.g., United States v. Philip Morris USA, Inc., 219 F.R.D. 198,
200 (D.D.C. 2004) (The underlying purpose [of case management orders] has been to ensure
efficient and orderly management of the case so that trial would proceed [on the scheduled date],
and to avoid last-minute trial-by-ambush tactics which might jeopardize that trial date.).
C. Notice Should Be Given When Exhibit Lists Are Due
Once the decision is made to require pretrial notice, the Court should set the deadline most
reasonable to accomplish the twin goals of fairness and efficiency. The deadline most directly
page 12 of 14
related to the advice-of-counsel defense is December 18, 2023the date on which the parties
shall exchange lists of exhibits they intend to use in their cases in chief. ECF No. 39 ¶ 8. 9 By
that date the defendant already is required to provide functional notice by way of the exhibits he
intends to offer into evidence; the Court should formalize the defendants requirement to produce
discovery by requiring notice at that point.
The defendants intention to pursue an advice-of-counsel defense has direct bearing on the
exhibits he will seek to introduce at trial. Presumably he would try to rely on, for example, the
very detailed memorandum from a constitutional expert his counsel described in an interview,
and therefore would need to identify that document on his exhibit list. He also would need to
identify as an exhibit any document showing that he made full disclosure of all material facts to
his attorney before receiving the advice at issue and that he relied in good faith on the counsels
advice that his course of conduct was legal. Gray-Burriss, 920 F.3d at 66. This could come in
the form of emails, text messages, attorney notes, communications, or other documents, any of
which would result in a subject-matter waiver over any other privileged materials.
Requiring the defendant to give formal notice at the time he designates exhibits on
December 18 is a natural complement to the Pretrial Order. In limine motions, including ones
seeking to admit or exclude certain evidence, are due by December 27, 2023. ECF No. 39 ¶ 4.
Objections to exhibits are due by January 3, 2024. Id. ¶ 8. And January 15, 2024, is the date by
which the parties must jointly submit a short narrative description of the case to be read to the
9
The defendants case in chief means not only what the defendant will introduce after
the Government rests, but also substantive, non-impeachment evidence introduced during the
Governments case-in-chief. See Crowder, 325 F. Supp. 3d at 136 (finding that the phrase case-
in-chief in Rule 16(b)(1)(A) refers to any substantive evidence [the defendant] affirmatively
intends to introduce to prove [his] theory of the case or defenses, as opposed to for the purpose of
impeachment only, regardless of when during the trial such evidence will be offered, collecting
cases, and stating that [n]early every court to consider the issue has concluded the same).
Page 13 of 14
prospective jurors, proposed voir dire questions, and jury instructions. Id. ¶ 5. The parties will
not be able to submit an effective joint proposal without advance notice of the defendants intent
to rely on the advice-of-counsel defense. For example, the asserted defense may inform what
questions the parties and the Court want to ask the venire during voir dire, and the Court would
benefit from the parties putting forth an agreed (or disputed) jury instruction regarding the advice
of counsel. The Redbook does not contain a generic iteration of the instruction, so necessarily the
Court will have to decide on the most appropriate language based on current law and the facts
introduced at trial. See id. ¶ 5 (To the extent that the parties seek to use pattern jury instructions
from the current version of the DC Redbook, it is sufficient simply to list the numbers of those
instructions. Special instructions shall be submitted verbatim with citations to cases and other
authorities to support each instruction.). The parameters of that instruction should operate as
guardrails throughout the trial and therefore should be determined by the Court prior to opening
statements.
In more simple cases with fewer attorneys on whose advice a defendant purportedly relied,
courts that have ordered pretrial disclosure of an intent to rely on an advice-of-counsel defense
ordinarily have required that it be provided within weeks of the start of trial. These cases are
factually distinguishable. See, e.g., Crowder, 325 F. Supp. 3d at 139 (requiring notice two weeks
before trial, in two defendant case involving scheme to defraud D.C. public schools); Dallman,
433 F. Supp. 3d at 813 (requiring notice ten days before trial, where defense arose from three
interactions involving two attorneys); Cooper, 283 F. Supp. 2d at 1225 (requiring notice two weeks
before trial, in health care fraud case with three defendants). In addition to the prudential reasons
to peg the defendants notice to the deadline for exhibit lists, a more substantial notice period is
warranted in this case because the defense likely will involve multiple lawyers, there will be
Page 14 of 14
discovery obligations and additional litigation, and the required notice will not expose any defense
secrets. As set forth above, lead counsel has identified one attorney by name, the defendant has
spoken of getting advice from multiple attorneys, and at least 25 witnesses have withheld
information from this investigation on the basis of attorney-client privilege.
Given the potential number of attorneys and breadth of advice involved, the defendants
notice should describe with particularity the following: (1) the identity of each attorney who
provided advice; (2) the specific advice given, including whether the advice was oral or written;
(3) the date on which the advice was given; and (4) the information the defendant communicated
or caused to be communicated to the attorney concerning the subject matter of the advice, including
the date and manner of the communication.
IV. Conclusion
The Court, the parties, the jury, and the public have an interest in an orderly and efficient
trial. The Court should build an appropriate interval into the pretrial schedule to ensure that all
disclosure, investigation, and litigation resulting from notice of the advice-of-counsel defense can
be addressed and resolved in an orderly fashion. For that reason, the Court should enter an order
requiring the defendant to provide notice of his intent to rely on such a defense by December 18,
2023. A proposed order is attached.
Respectfully submitted,
JACK SMITH
Special Counsel
By: /s/Thomas P. Windom
Thomas P. Windom
Molly Gaston
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530
Jack Smith's "Proposed Order" Attachment
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA *
*
v. * CRIMINAL NO. 23-cr-257 (TSC)
*
DONALD J. TRUMP, *
*
Defendant. *
*
PROPOSED ORDER
The Government has moved to require the defendant to provide notice, by December 18,
2023, of his intent to rely at trial on the advice-of-counsel defense. For the reasons stated in the
Governments motion, and for good cause shown, the motion is GRANTED.
The defendants notice, if any, should describe with particularity the following: (1) the
identity of each attorney who provided advice; (2) the specific advice given, including whether the
advice was oral or written; (3) the date on which the advice was given; and (4) the information the
defendant communicated or caused to be communicated to the attorney concerning the subject
matter of the advice, including the date and manner of the communication.
If the defendant serves notice, he must at the same time produce in discovery to the
Government (1) all communications or evidence the defendant intends to rely on to establish the
defense and (2) any otherwise-privileged communications the defendant does not intend to use
at trial, but that are relevant to proving or undermining it. United States v. Crowder, 325 F. Supp.
3d 131, 138 (D.D.C. 2018).
TANYA S. CHUTKAN
UNITED STATES DISTRICT JUDGE
UPDATE 3 -- JACK SMITH DC TRIAL
He's a great read!
1.
previous posts:
https://www.democraticunderground.com/100218344987
https://www.democraticunderground.com/100218318549
https://www.democraticunderground.com/100218228229
Again, prioritizing DC Federal docket filings in detail for now, since its the earlier trial scheduled.
If you want all the latest FL docket filing (listed most recent down to oldest filing, top to bottom), check the links above.
Heres the case:
2.
DC Federal United States v. TRUMP, 1:23-cr-00257, (D.D.C.) March 4 2024
U.S. Dist.(DC) Judge Tanya S. Chutkan E. Barrett Prettyman Courthouse
https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_Trump_(election_obstruction_case)
-- court docket
https://www.courtlistener.com/docket/67656604/united-states-v-trump/
3.
Heres Jack Smith's filing:
10/10/2023 Docket Entry #97
Jack Smith's Main Document, full text
N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA *
*
v. * CRIMINAL NO. 23-cr-257 (TSC)
*
DONALD J. TRUMP, *
*
Defendant. *
*
GOVERNMENTS OPPOSED MOTION FOR
FAIR AND PROTECTIVE JURY PROCEDURES
Trial in this matterin which the defendant, a former president, is charged with attempting
to overturn the presidential election, disenfranchise millions of Americans, and obstruct the
peaceful transfer of poweris a matter of national importance and will likely generate significant
public attention. To ensure that voir dire in this case proceeds in an orderly, efficient, and fair
manner, the Government proposes that the Court use a written juror questionnaire shortly in
advance of in-person jury selection. A questionnaire would save time by allowing the Court to
excuse some potential jurors without requiring them to appear in court, and by permitting the Court
and the parties to organize and streamline their questions for in-person voir dire. Because the
questionnaire process will give the parties early access to prospective jurors identifying
information and the ability to conduct open-source research regarding them, the Court should
impose reasonable boundaries for such research and reiterate its practicestandard among courts
in this Districtof prohibiting public identification of potential or selected jurors. Through
counsel, the defendant opposes this motion.
I. Proposed Jury Measures
The Court has broad discretion to manage jury selection, Rosales-Lopez v. United States,
451 U.S. 182, 189 (1981), and a duty to maintain control of the process to preserve fairness and
Page 2 of 11
at the same time protect legitimate privacy, Press-Enterprise Co. v. Superior Ct. of Cal., Riverside
Cnty., 464 U.S. 501, 512 (1984). The Courts discretion includes determining whether to employ
a written juror questionnaire, deciding which questions to pose to prospective jurors, and deploying
measures including anonymity and sequestration necessary to protect the integrity of the
proceeding. See Skilling v. United States, 561 U.S. 358, 386 (2010) (citing Ristaino v. Ross, 424
U.S. 589, 594595 (1976)) (Jury selection . . . is particularly within the province of the trial
judge); United States v. Tsarnaev, 595 U.S. 302, 313 (2022) (A trial courts broad discretion in
this area includes deciding what questions to ask prospective jurors.); United States v. Childress,
58 F.3d 693, 702 (D.C. Cir. 1995) (Courts duty to make a sensitive appraisal of the climate
surrounding a trial and a prediction as to the potential security or publicity problems that may arise
during the proceedings includes determining whether to anonymize jury); United States v.
Haldeman, 559 F.2d 31, 85 n.135 (D.C. Cir. 1976) (en banc) (per curiam) (it is axiomatic that the
decision to sequester (or unsequester) a jury rests within the trial judges discretion). In this case,
the Court should exercise its discretion to streamline jury selection through the use of a jury
questionnaire. At the same time, in light of the public attention that is expected, and the
defendants record of using public social media platforms in an intimidating mannerfurther
evinced by events in a separate trial in New York last weekthe Court should implement several
of the standard measures frequently used in this District to protect the jury, and impose additional
clear guidelines for use of information regarding potential jurors. 1
1
The record in this case amply supports the proposed restrictions on the disclosure of juror
information. Indeed, the Court has before it evidence sufficient to implement far more restrictive
measures, including full juror anonymity and full sequestration. See United States v. Edmond, 52
F.3d 1080, 1091 (D.C. Cir. 1995) (per curiam) (explaining that juror anonymity may be warranted
upon a showing of, among other things, extensive publicity that could enhance the possibility
that jurors names would become public and expose them to intimidation or harassment (quoting
page 3 of 11
A. The Government Requests a Questionnaire To Make Voir Dire More Efficient
Use of a written questionnaire in this case, shortly before in-person voir dire, will expedite
the process of selecting a fair jury. Written questionnaires are now a common complement to
oral examination when selecting an effective and impartial jury, United States v. Isaacson, 752
F.3d 1291, 1301 (11th Cir. 2014), and are routinely employ[ed] . . . to facilitate jury voir dire in
a number of circumstances, id., including where a large number of prospective jurors must be
screened; where an anonymous jury is to be empaneled; [or] where there has been extensive pre-
trial publicity, United States v. Quinones, 511 F.3d 289, 299 (2d Cir. 2007) (citations omitted).
When confronted with trials estimated to last longer than two weeks or that are otherwise expected
to require a larger jury pool from which to draw, courts in this District have used questionnaires
to make in-person voir dire more expedient. See, e.g., United States v. Rhodes, No. 22-cr-15
(APM) (D.D.C.) (advance written questionnaire used for eight week January 6-related seditious
conspiracy trial of multiple defendants associated with the Oath Keepers); United States v.
Nordean, No. 21-cr-175 (TJK) (D.D.C.) (advance written questionnaire used in January 6-related
months-long seditious conspiracy trial of multiple defendants associated with the Proud Boys);
United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C.) (advance written questionnaire used in highly
publicized trial for false statements to Congress); United States v. Slatten, No. 14-cr-107 (RCL)
(D.D.C.) (advance written questionnaire used in months-long trial of Blackwater contractor for
2007 massacre at Nisour Square in Baghdad). Here, a questionnaire will make in-person voir dire
United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994))); Childress, 58 F.3d at 703 (The court
reasonably found the serious potential for juror intimidation during and after the trial that would
justify the extreme precautions of anonymity and sequestration.) Nonetheless, the Government
is not proposing such measures at this time.
page 4 of 11
more efficient because it will allow the Court and the parties, in advance, to confer and excuse
jurors who should be struck for cause. It also will assist the parties in preparing organized and
succinct lists of questions, tailored to each juror. See Slatten, ECF No. 1052 at 6 (June 18, 2018)
(court informing jurors that questionnaire will save a lot of time ultimately and will speed the
process of jury selection and minimize the amount of time that you must spend in the courtroom
while a jury is selected).
In particular, the Government proposes the following schedule consistent with the written
questionnaire process directed by this Court in United States v. Alford, No. 21-cr-263 (D.D.C.),
and other cases in this District. First, the Court should order the Government to draft a
questionnaire, confer with the defense, and file a proposed questionnaire with indications as to
which questions the parties agree upon and which they do not, after which the Court will issue a
final questionnaire. See id., ECF No. 46 at 15 (Apr. 18, 2022) (ordering defendant, who moved
for written advance questionnaire, to prepare a written questionnaire for distribution to
prospective jurors and meet and confer with the government . . . before submitting it for court
approval, indicating in his filing disputes between the parties regarding language). Next, the
Clerk will issue summonses to potential jurors to appear at the courthouse and complete written
questionnaires in advance of in-person voir dire. Courts have scheduled this for varying amounts
of time in advance of trial, ranging from days, to weeks, to months. See id., ECF No. 50 (one day
in advance); Rhodes, ECF Nos. 133 & 319 (Apr. 29, 2022 & Sept. 15, 2022) (two weeks in
advance); Nordean, ECF No. 562 (Nov. 30, 2022) (roughly two weeks in advance); Stone, ECF
No. 362 at 10, 21 (April 16, 2020) (almost two months in advance). Here, subject as always to the
Courts schedule, the Government proposes that jurors complete written questionnaires on or about
Friday, February 9, 2024, approximately three weeks before in-person jury selection begins on
page 5 of 11
Monday, March 4. Then, on a date of the Courts choosing the week of February 26, the parties
would jointly submit a list of jurors whom they agree should be struck for cause, and separate lists
of jurors whom each party moves to strike for cause, based solely on information in the
questionnaire (e.g, individuals who establish that they genuinely cannot serve because of some
actual and immovable personal or professional conflict, or individuals who unequivocally establish
that they cannot follow the Courts instructions).
B. The Court Should Impose Reasonable and Standard Restrictions to Protect Jurors
If the Court approves the use of a questionnaire, the parties will learn the identities of
potential jurors in advance of in-person jury selection. It is commonplace in this District for
parties, once they are provided with jurors identifying information, to conduct open-source social
media research on the venire. Given the particular sensitivities of this case, stemming both from
heightened public interest and the defendants record of using social media to attack others, the
Court should impose certain limited restrictions on the ability of the parties to conduct research on
potential jurors during jury selection and trial and to use juror research. In addition, the Court
should strictly enforce the standard practices in this District designed to shield juror identities from
the public.
It is standard and accepted practice in this and other districts for parties to conduct open-
source internet research, including by viewing the public-facing social media accounts of potential
jurors. See D.C. Bar Ethics Op. 371, Social Media II: Use of Social Media in Providing Legal
Services (Nov. 2016) (Competent and zealous representation . . . may require investigation of
relevant information from social media sites of jurors or potential jurors to discover bias or other
relevant information for jury selection. Accessing public social media cites of jurors or potential
jurors is not prohibited . . . as long as there is no communication by the lawyer with the juror.).
page 6 of 11
This is appropriate and consistent with the jury selection processs purpose of weeding out partial
or unfair jurors and helping the parties exercise challenges. See MuMin v. Virginia, 500 U.S. 415,
431 (1991) (Voir dire examination serves the dual purposes of enabling the court to select an
impartial jury and assisting counsel in exercising peremptory challenges.). Moreover, the review
of open-source information will mitigate the risk that a post-trial review will give rise to litigation.
See United States v. Stone, 613 F. Supp. 3d 1, 41-44 (D.D.C. 2020) (defendants motion for new
trial based on unfounded claim that juror had misrepresented social media activity denied in part
because defense had necessary information from jurors questionnaire with which to confront juror
during in-person voir dire and chose not to).
The Court should make clear to the parties, however, that research beyond what is publicly
availableespecially if it results in any kind of contact with a potential jurorwould infringe
upon potential jurors privacy interests and could constitute improper ex parte communication.
See Oracle Am., Inc. v. Google, Inc., 172 F. Supp. 3d 1100, 1103 (N.D. Cal. 2016) (jurors are not
celebrities or public figures but good citizens commuting from all over our district, willing to
serve our country, and willing to bear the burden of deciding a commercial dispute the parties
themselves cannot resolve. Their privacy matters. Their privacy should yield only as necessary
to reveal bias or a reluctance to follow the Courts instructions.). The parties should thus be
precluded, during jury selection and trial, from asking to follow or friend anyone, or make any
analogous affirmative request, to gain access to posts or profiles that are not otherwise publicly
available. D.C. Bar Ethics Op. 371; see also Local Criminal Rule 24.2(a) (No party, attorney for
a party, or person acting on behalf of a party or attorney, shall communicate directly or indirectly
with a juror or an excused juror or a member of a jurors, or excused jurors, family during the
trial.). This prohibition should not apply, however, to mere passive viewing of publicly available
page 7 of 11
information on sites like LinkedIn that may alert a potential juror to the fact that a particular person
has reviewed his or her account. See, e.g., Standing Order Regarding Research as to Potential
Jurors in All Cases Assigned to U.S. District Judge Rodney Gilstrap (E.D. Tex.). 2 Finally, the
parties should also be precluded from any form of investigationwhether online or otherwise
that could reasonably be perceived as vexatious or harassing.
The Court also should prohibit the use of information gained from juror research for any
purpose other than voir dire, and even there, the Court should require that if a party intends to use
any information gained through open-source research, the party does so in a way that does not
reveal any jurors identity. This limitation is consistent with this Districts practice and Local
Criminal Rule 24.1(b), which dictate that jurors identifying information not be made public
outside of the courtroom, and that in the courtroom, the Court and parties refer to jurors by number
rather than name. See Local Criminal Rule 24.1(b) (Officers of the Court and other parties who
have access to juror names through the Court . . . shall not disclose names of prospective and sitting
petit jurors to the public outside of open court, except upon order of the Court.); 3 Nordean, Trial
Tr. at 571-574 (Dec. 20, 2022) (court admonishing an attorney, Its not appropriate to mention
potential jurors names in court.); Rhodes, Trial Tr. at 73 (Sept. 27, 2022) (court correcting
2
https://www.txed.uscourts.gov/sites/default/files/judgeFiles/Standing%20Order%20--
%20Juror%20Research%20%28signed%29.pdf. This standing order in the Eastern District of
Texas provides that parties are not prohibited from conducting or causing another to conduct any
type of online investigation merely because a juror or potential juror may become aware that his
or her [electronic social media] is being reviewed, and therefore the parties are not prohibited
from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would
alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her
LinkedIn account.
3
Though it has long been standard practice in this District not to publicly disseminate juror
names, recently, after a large number of high-profile trials, the Local Criminal Rules were amended
in April 2023 to add this provision and make the practice the rule.
page 8 of 11
attorney who used a jurors name); United States v. Bannon, No. 21-cr-670 (CJN), ECF No. 172
at 3 (D.D.C. July 18, 2022) at 3 (court directing the parties before voir dire, I very much expect
that while we, of course, have the names of the jurors, that we will not and no one will mention
the juror names on the public record during voir dire today. We will use only juror numbers);
Stone, ECF No. 242 at 4 (Oct. 25, 2019) (order adopting multiple protections for jurors, including
a prohibition on sketch artists drawing detailed sketches of any member of the jury).
Finally, the Court should admonish the parties to handle juror questionnaires and jury
sheets containing jurors identifying information with care, including by requiring each party to
ensure that any individual the party permits to access these sensitive materials understands that he
cannot publicly disclose the information. With respect to questionnaires, this is analogous to the
restrictions that courts in this District place on handling of the jury sheets that reveal to the parties
the potential jurors names and personal information during in-person voir dire. See United States
v. Handy, No. 22-cr-96 (CKK), ECF No. 320 at 2-3 (D.D.C. Aug. 1, 2023) (in case involving civil
rights conspiracy to obstruct access to reproductive health services, court tightly controlled jury
sheets listing jurors names and identifying information, including that they must remain in the
courtroom and be returned to the court at night to be placed under seal and maintained in the
Courts vault); id., Trial Tr. at 7 (Aug. 10, 2023) (explaining that reason for control over jury
sheets is to make sure that there are no issues, that the jurors are not interfered with, not
influenced, not intimidated.). Such a precaution is not only necessary to ensure that all parties
handle sensitive juror information responsibly, but also so that the Court can assure prospective
and seated jurors in this case that no party will improperly use their names or other identifying
information.
page 9 of 11
There are other good reasons in this case for the Court to impose these restrictions and
enforce this Districts standard prohibition against publicizing jurors identities. Chief among
them is the defendants continued use of social media as a weapon of intimidation in court
proceedings. In addition to the record before the Court from the Governments previous filings,
see ECF Nos. 57 & 64, just last week the defendant escalated his conduct and publicly attacked
the trial judges law clerk in his pending civil fraud trial in New York State Supreme Court. The
defendant did so by reposting on his Truth Social accountwhich has 6.4 million followersa
photograph of the law clerk and a United States Senator with the baseless caption, [Senators]
girlfriend, [Clerk], is running this case against me. How disgraceful! This case should be
dismissed immediately! 4 As a result, the judge in that case was forced to issue an oral order that
no party speak publicly about members of the court staff. 5 Given that the defendantafter
apparently reviewing opposition research on court staffchose to use social media to publicly
attack a court staffer, there is cause for concern about what he may do with social media research
on potential jurors in this case. It is therefore necessary for the Court to employ the limited
restrictions described above.
Even before the defendants most recent concerning conduct, as the Court is aware, the
defendants supporters already had directed threats to the Court, see United States v. Shry, No.
4:23-mj-1602, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023), and to grand jurors
4
See Wall Street Journal, Judge Admonishes Trump for Social Media Post Attacking
Law Clerk (Oct. 3, 2023), available at https://www.wsj.com/us-news/law/judge-dampens-
trumps-enthusiasm-on-limiting-scope-of-fraud-case-30dfe11c.
5
See CNN, Judge issues gag order and rebukes Trump after social media post attacking
his clerk (Oct. 4, 2023), available at https://www.cnn.com/2023/10/03/politics/trump-gag-order-
social-media-threat/index.html.
page 10 of 11
who returned an indictment in Fulton County, Georgia. 6 For these and related reasons, another
federal court presiding over a civil case involving the defendant recently found it appropriate to
adopt measures to protect juror privacy that are far more restrictive than those proposed by the
Government here. See Carroll v. Trump, No. 22-cv-10016, 2023 WL 2612260, at *2, *4 (S.D.N.Y.
Mar. 23, 2023) (keeping jurors identities secret even from the parties upon findings thatin the
context of the defendants repeated attacks on courts, judges, various law enforcement officials
and other public officials, and even individual jurors in other mattersf jurors identities were
disclosed, there would be a strong likelihood of unwanted media attention to the jurors, influence
attempts, and/or of harassment or worse of jurors by supporters of Mr. Trump). The Court should
likewise protect prospective and selected jurors in this case from intimidation and fear through the
limited measures proposed above.
Finally, jurors in this case are likely to receive substantial media and other public attention.
In consultation with the United States Marshals Service, the Court may wish to consider measures
to protect the jury in this case from scrutiny and harassment, such as arranging for jurors to gain
discreet entry into and out of the courthouse. See, e.g., Stone, ECF No. 294 at 13 (Nov. 5, 2019)
(court explaining to prospective jurors, We will make arrangements . . . for the jurors who are
selected to serve to come and go from the courthouse in a private manner so that you do not have
to interact with other people or make your way through any crowds that gather at any of the public
entrances.). Courts in some of the other high-profile matters cited above took similar steps.
6
See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump
Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/national-
security/2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an
online post stating, These jurors have signed their death warrant by falsely indicting President
Trump).
Page 11 of 11
Closer in time to trial, the Government may request specific additional protective measures for the
jury.
II. Conclusion
To ensure an efficient process for selecting a fair and impartial jury in this case, the Court
should use a written questionnaire shortly in advance of in-person voir dire. At the same time, the
Court should adopt several of this Districts standard measures to protect the identities, privacy,
and security of prospective and selected jurors.
Respectfully submitted,
JACK SMITH
Special Counsel
By: /s/Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530
October 2023 Gaza−Israel conflict -- a summary from the Commons of the Internet
October 2023 Gaza−Israel conflict -- a summary, background and names, international actions and reactions, economics, possible spread issues, war crimes, and of course, unfolding misinformation sources, etc., -- from the Commons of the Internet.
A dense but necessary reading of the War. Wikipedia mis-titled it, imo.
But that's an editing decision, and things are pretty f'n fluid right now.
https://en.wikipedia.org/wiki/October_2023_Gaza%E2%88%92Israel_conflict
The Palestinian invasion represented a boiling point in the breakdown of relations between the strip and Israel. This followed months of clashes between Israelis and Palestinians, including ones in Jenin and at Al-Aqsa mosque, that killed almost 250 Palestinians and 32 Israelis;[h] Hamas cited these events and attacks by Jewish settlers in the Israeli-occupied West Bank as justification for the offensive.[37] Mohammed Deif, the commander of its military wing, the Izz ad-Din al-Qassam Brigades, called on Palestinians and Arab Israelis to "expel the occupiers and demolish the walls".[38] In an emergency meeting in the West Bank shortly after the attacks began, Mahmoud Abbas of the Palestinian Authority expressed support for the Gazan infiltration, stating that Palestinians had the right to defend themselves against the Israeli occupation.[39][40] In Israel, former prime minister Yair Lapid of Yesh Atid has advocated for the formation of a national unity government to combat the Palestinian offensive.[41]
At least 3,000 rockets were fired from the Gaza Strip as Hamas militants broke through the border and entered Israel, killing at least 900 Israelis[42][43] and prompting Israel's government to declare a state of emergency. Israeli prime minister Benjamin Netanyahu stated that Israel "is at war" in a national address following the beginning of the attacks.[44][45][46] Palestinian militants who infiltrated Israel made their way into several kibbutzim near the Gaza Strip as well as the city of Sderot.[47] Both Palestinian and Israeli media sources reported that Israeli soldiers and civilians, including children, had been taken hostage by Palestinian militants;[48] several of these hostages have reportedly since been taken to the Gaza Strip. Numerous cases of violence against Israeli civilians have also been reported since the beginning of the Hamas offensive, including a massacre at a music festival in Re'im.[49][50] Israel retaliated against the invasion by bombarding strategic buildings and military targets, with 20 reported cases of shelling of civilian infrastructure, including residential buildings, mosques, hospitals, and banks. The Palestinian Ministry of Health led by Hamas in Gaza reported Israel had killed at least 500 Palestinians in gunfights and by airstrikes in Gaza and Israel, including civilians, 78 children and 41 women; while the Israel Defense Forces (IDF) stated it killed more than 400 terrorists.[51][52][53][54][55] Hamas' initial offensive is considered to be the deadliest non-state act of terrorism in Israeli history, as well as the second-deadliest event of that kind worldwide, surpassed only by the September 11 attacks in the United States.[56][57]
Hamas announced that Iran supported the Palestinian offensive;[37] Iranian officials praised the attacks.[58][59] In response to the attack the United States government announced that it was moving an aircraft carrier, warships, and military jets to the eastern Mediterranean and providing Israel with additional military equipment and ammunition.[60] Countries of the Western world as well as its allies condemned Hamas for the violence and described the tactics used as terrorism,[61][62][63][64] while some Muslim countries blamed the Israeli occupation of Palestinian territories and the denial of Palestinian self-determination as the root cause of the escalation.[65][66] Saudi Arabia and Nigeria called for de-escalation.[69][70] A conflict was reported between Hezbollah and Al-Quds Brigades forces in Lebanon and Israeli forces on October 8 and 9.[71][72]
UPDATE 2 -- JACK SMITH DC TRIAL
1.previous posts:
https://www.democraticunderground.com/100218318549
https://www.democraticunderground.com/100218228229
Because the stakes for democracy are high, and since even federal trials of historical of national importance arent televised or broadcast, its reasonably important to know how our federal courts optimize fairness to, from, and for both plaintiff and defendant outside of biased or higher priority media reporting (e.g., Israels War, and the House speaker drama).
To that end, the scheduling and excerpts from our sides key filings help us know many overall trial arguments in advance.
Im prioritizing DC Federal docket filings in detail for now, since its the earlier trial scheduled. But look at previous post links above, or here, to get the latest on the FL docket filings.
The latest DC docket filing is offered here, bolded in parts for emphasis.
2.
Heres the case:
DC Federal United States v. TRUMP, 1:23-cr-00257, (D.D.C.) March 4 2024
U.S. Dist.(DC) Judge Tanya S. Chutkan E. Barrett Prettyman Courthouse
https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_Trump_(election_obstruction_case)
-- court docket
https://www.courtlistener.com/docket/67656604/united-states-v-trump/
3.
Heres Judge Chutkan's docket filing edited or bolded for readability:
10/06/2023 Docket Entry #82
-- granting in part and denying in part Defendant's 62 Motion for Access to CIPA § 4 Filing and An Adjournment of the CIPA § 5 Deadline;
-- granting in part and denying in part Defendant's 63 Motion for Extension of Time to File Pretrial Motions; and
-- amending in part the court's 39 Pretrial Order. (see previous posts above)
-- October 11, 2023: Defense objections to ex parte nature of government's CIPA § 4 submission due ;
-- October 18, 2023: government response due.
-- October 26, 2023: Defense CIPA § 5 notice due, with supplemental notices due within 20 days of receiving access to additional classified discovery materials.
-- October 23, 2023: Dispositive motions, including motions to dismiss, due ;
oppositions due within 14 days of motion's filing;
replies due within 10 days of opposition's filing.
-- November 9, 2023: Rule 17(c) motions and motions to compel due ;
-- November 24, 2023oppositions due ;
-- December 1, 2023: replies due.
See Opinion & Order for details. Signed by Judge Tanya S. Chutkan on 10/6/2023. (zjd)
(Entered: 10/06/2023)
https://www.courtlistener.com/docket/67656604/82/united-states-v-trump/
Finally, here's the docket #82 Main Document, "granting in part and denying in part,"
with only page headings deleted, no bolding. It's here to be read. Comments always welcome.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Civil Action No. 23-cv-257 (TSC)
DONALD J. TRUMP,
Defendant.
OPINION & ORDER
Before the court are Defendants Motion for Access to CIPA § 4 Filing and An
Adjournment of the CIPA § 5 Deadline, ECF No. 62 (CIPA Motion), and Motion for
Extension of Time to File Pretrial Motions, ECF No. 63 (Extension Motion). For the reasons
set forth below, the court will GRANT in part and DENY in part both Motions.
A. CIPA Motion
The court turns first to the issues related to the Classified Information Procedures Act
(CIPA), which governs the access to and use of classified information in criminal proceedings.
In its CIPA Motion, the defense asks the court to:
(1) order the Special Counsels Office to file a redacted version of its CIPA § 4
motion and a public brief justifying its redactions; (2) refrain from addressing the
CIPA § 4 motion until President Trump has an opportunity to file procedural
objections on October 11, 2023 and make any appropriate ex parte submission
regarding his defense theories; and (3) adjourn the deadline for CIPA § 5 notice
until three weeks after the Office complies with its disclosure obligations as to the
entire defense team.
CIPA Motion at 9. The court will grant the second request, but deny the first and third.
page 2 of 6
First, the court will not require the government to file a redacted brief of its CIPA § 4
submission. That submission is classified in its entirety, which justifies its sealing in full. 1 And
the defense cites no authority for the proposition that the court shouldor even couldorder the
government to declassify any portion of it. Contra Dept of Navy v. Egan, 484 U.S. 518, 527
(1988) (The authority to classify and control access to information bearing on national security
. . . flows primarily from [the] constitutional investment of power in the President in Article II,
Section 2.); New York Times v. Cent. Intel. Agency, 965 F.3d 109, 123 (2d Cir. 2020) ([T]he
suggestion that courts can declassify information raises separation of powers concerns.); United
States v. Libby, 429 F. Supp. 2d 46, 48 (D.D.C. 2006) (Accordingly, the Court cannot
preemptively constrain the government in any manner from making filings it deems appropriate,
necessary, and permissible under Section 4.). The governments entire CIPA § 4 submission
will therefore remain under seal.
Second, the court will nonetheless permit the defense to file objections to the ex parte
nature of the governments CIPA § 4 motion. CIPA Motion at 23. The D.C. Circuit has
emphasized that in this context, since the government is seeking to withhold classified
information from the defendant, adversarial litigation over that information would defeat the
1
Whether evaluated under the First Amendments limited right of access to documents in
criminal cases, see Press-Enter. Co. v. Superior Ct. of California for Riverside Cnty., 478 U.S.
1 (1986), or the presumption of public access discussed in United States v. Hubbard, 650 F.2d
293 (D.C. Cir. 1980), classified documents by and large qualify for sealing. There is no
historical tradition of access to them, and for good reason: The well-established risks to
national security created by the disclosure of classified materials generally outweigh any
interest in making them public. See Dhiab v. Trump, 852 F.3d 1087, 1096 (D.C. Cir. 2017)
(concluding there is no right under the First Amendment to receive properly classified
security information filed in court in a habeas proceeding); id. at 1098 (The law of this
circuit is that the need to guard against risks to national security interests overcomes a
common-law claim for access.) (quoting Hubbard, 650 F.2d at 31516). That is the case
here.
page 3 of 6
very purpose of the discovery rules. United States v. Mejia, 448 F.3d 436, 457 & n.21 (D.C.
Cir. 2006). Still, the court will allow the defense an opportunity to explain why it believes that
CIPAs statutory text and Circuit precedent do not govern this case. The court will require any
brief articulating such objections to be filed by October 11, 2023. The government may file any
response to those objections by October 18, 2023.
Third, the court will not adjourn the initial CIPA § 5 notice deadline. During the August
28, 2023 hearing in this case, the court set that deadline for thirty days after defense counsel Mr.
Blanche received finalized clearance to review the classified discovery shared by the
government. Protective Order Hrg Tr., ECF No. 38 at 4251. Mr. Blanche, along with two
additional attorneys and a paralegal, received final clearance and access to those materials on
September 26, 2023. See ECF No. 65 at 45. That results in a CIPA § 5 notice deadline of
October 26, 2023. The court is not persuaded that an indefinite extension of that deadline, as the
defense requests, is warranted. Thirty days is sufficient time for Mr. Blanche and his team to
review the relatively limited classified discovery at issue here, which totals fewer than one
thousand pages. See id. at 5. If, as the defense posits, the government is later required to
produce additional classified discovery, see CIPA Motion at 89, the defense may file a
supplemental CIPA § 5 notice with respect to any of those additional materials within twenty
days of receiving access to them.
B. Extension Motion
In its Extension Motion, the defense asks for the pretrial motions deadline of October 9,
2023 to be extended sixty days to December 8, 2023. At any time before trial, the court may
extend or reset the deadline for pretrial motions. Fed. R. Crim. P. 12(c)(2). The courts
discretion to do so is broad. See Fed. R. Crim. P. 12 advisory committees note to 2014
amendment; Morris v. Slappy, 461 U.S. 1, 11 (1983). The defense contends that it needs
page 4 of 6
additional time to finalize several of its expected motions, including, for example, motions to
dismiss relating to executive immunity, failure to state a claim, and improper conduct by the
Special Counsel during the grand jury process and in charging decisions, motions for 17(c)
subpoenas, potential motions to compel discovery, etc. Extension Motion at 3. The court will
not grant the full sixty-day extension sought but will adjust the pretrial schedule to grant the
defense some additional time to file certain motions.
Lengthy deadline extensions for the defenses anticipated dispositive motionslike
motions to dismissare not warranted. If the court were to extend the briefing schedule for
these motions by the requested sixty days, they would not be fully briefed until January 2024. In
other words, what the defense anticipates will be numerous novel and complex legal issues . . .
of first impression, id. at 1, would not be fully presented to the court until fewer than three
months before the scheduled trial date of March 4, 2023the same three months in which the
parties may dispute motions in limine, voir dire questions, jury instructions, and other pretrial
matters. See Pretrial Order, ECF No. 39. Backloading the pretrial schedule to that degree will
not serve the interests of justice. Moreover, such dispositive motions will by their nature turn on
legal issuessuch as the sufficiency of the governments pleadingsthat the defense has had
months to anticipate, research, and brief. See United States v. Mosquera-Murillo, 153
F. Supp. 3d 130, 154 (D.D.C. 2015) (quoting Moores Federal Practice § 612.02). The defense
confirmed at the August 28, 2023 hearing that it had already begun work on those motions.
Protective Order Hrg Tr., ECF No. 38 at 3336, 5152. In fact, the defense filed its Motion to
Dismiss Indictment Based on Presidential Immunity on October 5, 2023, well ahead of the
October 9 deadline. ECF No. 74. Consequently, the court will grant a two-week extension of
the dispositive motions deadline.
page 5 of 6
The court will grant additional time for the filing of Rule 17(c) motions and motions to
compel. Unlike the dispositive motions discussed above, these motions will deal primarily with
evidentiary rather than legal issues. As such, some of these motionsand the defenses
arguments in support of themmay arise from the defenses ongoing review of the discovery
materials. The court has recognized that the discovery materials in this case are well-organized
but significant, and additional time to review them may be useful to the defense as it considers
motions related to the acquisition of evidence. Protective Order Hrg Tr., ECF No. 38 at 1718,
53. But, in the interests of justice, the court must weigh that utility against the disadvantages of
backloading the pretrial schedule. Accordingly, the court will grant a one-month extension of
the deadline to file Rule 17(c) motions and motions to compel.
C. Conclusion
For the reasons stated above, Defendants Motion for Access to CIPA § 4 Filing and An
Adjournment of the CIPA § 5 Deadline, ECF No. 62, is hereby GRANTED in part and DENIED
in part. The court will not require the government to publicly docket a partially redacted version
of its CIPA § 4 submission. The defense may file a brief objecting to the ex parte nature of the
governments CIPA § 4 submission by October 11, 2023, and the government may file a
response to that brief by October 18, 2023. The deadline for the defenses CIPA § 5 notice
remains October 26, 2023, but the defense may file supplemental notices with respect to any
additional classified discovery it receives within twenty days of receiving access to it.
Likewise, Defendants Motion for Extension of Time to File Pretrial Motions, ECF No.
63, is hereby GRANTED in part and DENIED in part. The courts Pretrial Order, ECF No. 39,
is AMENDED as follows with respect to the pre-trial motions deadlines set forth in its second
paragraph. Rule 17(c) motions and motions to compel shall be filed by November 9, 2023; any
oppositions to those motions shall be filed by November 24, 2023; and any replies in support of
page 6 of 6
those motions shall be filed by December 1, 2023. If there are multiple such motions, then to the
extent possible, the motions, oppositions, and replies shall be filed in omnibus. All other pretrial
motions, including motions to dismiss and other dispositive motions (but excluding motions in
limine and suppression motions as set forth in paragraph five of the Pretrial Order), shall be filed
by October 23, 2023; any opposition shall be filed within fourteen days of the motions filing;
and any reply shall be filed within ten days of the oppositions filing.
Date: October 6, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
The NSA & CISA Advise American Business and Orgs on How To Prevent Common Security Breaches
If anyone needs advice during National Cybersecurity Awareness Month, it's American business and state governments.
The NSA and CISA can't permanently play whack-a-mole for them. Business, state governments and large orgs can profit themselves and the nation by taking cost saving measures to defend themselves, and thus, government networks they connect to.
(Lookin' at you, Microsoft, Apple, Google, Amazon.)
EXECUTIVE SUMMARY
The National Security Agency (NSA) and Cybersecurity and Infrastructure Security Agency (CISA) are releasing this joint cybersecurity advisory (CSA) to highlight the most common cybersecurity misconfigurations in large organizations, and detail the tactics, techniques, and procedures (TTPs) actors use to exploit these misconfigurations.
Through NSA and CISA Red and Blue team assessments, as well as through the activities of NSA and CISA Hunt and Incident Response teams, the agencies identified the following 10 most common network misconfigurations:
Default configurations of software and applications
Improper separation of user/administrator privilege
Insufficient internal network monitoring
Lack of network segmentation
Poor patch management
Bypass of system access controls
Weak or misconfigured multifactor authentication (MFA) methods
Insufficient access control lists (ACLs) on network shares and services
Poor credential hygiene
Unrestricted code execution
These misconfigurations illustrate (1) a trend of systemic weaknesses in many large organizations, including those with mature cyber postures, and (2) the importance of software manufacturers embracing secure-by-design principles to reduce the burden on network defenders:
Properly trained, staffed, and funded network security teams can implement the known mitigations for these weaknesses.
Software manufacturers must reduce the prevalence of these misconfigurationsthus strengthening the security posture for customersby incorporating secure-by-design and -default principles and tactics into their software development practices.[1]
NSA and CISA encourage network defenders to implement the recommendations found within the Mitigations section of this advisoryincluding the followingto reduce the risk of malicious actors exploiting the identified misconfigurations.
Remove default credentials and harden configurations.
Disable unused services and implement access controls.
Update regularly and automate patching, prioritizing patching of known exploited vulnerabilities.[2]
Reduce, restrict, audit, and monitor administrative accounts and privileges.
NSA and CISA urge software manufacturers to take ownership of improving security outcomes of their customers by embracing secure-by-design and-default tactics, including:
Embedding security controls into product architecture from the start of development and throughout the entire software development lifecycle (SDLC).
Eliminating default passwords.
Providing high-quality audit logs to customers at no extra charge.
Mandating MFA, ideally phishing-resistant, for privileged users and making MFA a default rather than opt-in feature.[3]
For assistance with mapping malicious cyber activity to the MITRE ATT&CK framework, see CISA and MITRE ATT&CKs Best Practices for MITRE ATT&CK Mapping and CISAs Decider Tool.[6],[7]
https://www.cisa.gov/news-events/cybersecurity-advisories/aa23-278a
Retired General Mark Milley Interview
Remember Snyder's 'On Tyranny'? Here's an even more relevant one for 2023-2024.
Lee McIntyre -- writer of Post Truth (2018) and How to Talk to a Science Denier (2021) -- wrote this pocket-sized powerhouse book on how to literally see and stop digital & analog disinformation.I'm half done and HIGHLY recommend this as required reading for all DU'ers. It's that good.
(Amazon $15, 133 book pgs, notes and index; five stars because it's worth every penny)
I just bought a bunch more to give to friends and rethug associates.
Right now this is important because whether they confirm or deny it, we're already seeing how Internet platforms are already softening their content rules.
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