Trump’s lawyers have deployed a firehose of motions in a desperate attempt to hobble the cases against him, delay trials, and mollify their boss. They have had some success with the bought-and-paid-for Aileen Cannon. However, with Georgia Judge Scott McAfee and New York Judge Arthur Engoron, their voluminous legal whining has been less effective — and federal jurist Tanya Chutkan has stood like a rock in the turbulent sea of Trump’s swamp-them-with-bullshit legal strategy.
In their latest motion in the DC court, Trump’s legal team kvetched that the big bad special prosecutor, Jack Smith, had used inflammatory language in his indictments — which they claimed would hopelessly taint the jury pool. In response, Judge Chutkan told them to bugger off — except she used moderate language and backed it up with case law.
In her denial, Chutkan first outlined the Trump team’s wishful thinking and the language they were objecting to.
“The Motion asks the court to strike paragraphs 10(d) and 105–13 of the indictment. Those paragraphs allege that on January 6, 2021, “Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” and that after the supporters “broke through barriers cordoning off the Capitol grounds,” “violently attack[ed] law enforcement officers,” and “breached the building,” Defendant “refused” to “issue a calming message aimed at the rioters” and instead “issued a Tweet intended to further delay and obstruct the certification,” attacking Mike Pence for failing to halt the certification proceedings.”
She then rendered her decision.
“The court will DENY Defendant’s Motion.”
Next she outlined the reasons for her decision (I have omitted the case references for the sake of clarity and brevity)
“Federal Rule of Criminal Procedure provides that a “court may strike surplusage from the indictment or information” upon a defendant’s motion. That rule “has been strictly construed against striking surplusage,” so motions like Defendant’s “are highly disfavored in this Circuit,” They “should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial.” If an allegation is relevant, or is not inflammatory and prejudicial, the motion should be denied.”
Note: It is always good to expand one’s vocabulary. In this case, I learned that in jurisprudence, ‘surplusage’ is language within a document that has no legal relevance and may thus be ignored.
Chutkan adds that the relevance of the allegations is irrelevant to the case, as Trump’s team had once again screwed the pooch.
“Regardless of whether the allegations at issue are relevant, Defendant has not satisfied his burden to clearly show that they are prejudicial.”
She then states Trump’s case.
“He argues that sharing the allegations with the jury may result in prejudice at his trial “because members of the jury may wrongfully impute fault to [him]” for “the actions at the Capitol on January 6.” Motion at 5; see also id. at 4 (arguing that “the jury might decline to give defendants the benefit of reasonable doubt due to extraneous allegations”).”
In dismissing that contention, Chutkan explained that the jurors will not see the indictment.
“But consistent with its past practice, this court will not provide a copy of the indictment to jurors, eliminating that source of potential prejudice.”
She then called Trump a flaming hypocrite. And she addressed the lawyers’ claim of prejudice by pointing out they had not done any homework.
“Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous inflammatory and unsupported accusations of its own (“President Biden directed the Department of Justice to prosecute his leading opponent for the presidency through a calculated leak to the New York Times.”), devotes only a single paragraph to the prejudice requirement.
His sole argument is that even if the jury does not receive a copy of the indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be, exposed to the Indictment and its inflammatory and prejudicial allegations, through media coverage relating to the case.” But Defendant fails to cite even one example of that evidence.”
In plain speak, she said: do not deal it if you can not handle it. And if you say something is so, offer some fecking evidence for it.
She adds that there is a process for weeding out biased jurors. She again says that Trump is second to none in incendiary shit-slinging. And she points out that after the jurors are impaneled, the Court will shield them from extraneous noise.
“In any event, the voir dire process will allow the court to examine and address the effects that pretrial publicity, including any generated by Defendant, has had on the impartiality of potential jurors. When the trial begins, the court will also take steps to screen from the jury any irrelevant and prejudicial material that either party seeks to introduce. Moreover, before the jurors deliberate, the court will instruct them on the actual charges and the evidence they may consider in their deliberations
Adding that: “jury instructions would “make clear to [jurors] what defendants are actually charged with” and “the verdict form will not ask the jury to consider issues for which defendants have not been charged”. This too will prevent “potential prejudice from the alleged surplusage.”
And then, having plunged the knife in, she gives it a twist.
“For these reasons, Defendant’s Motion to Strike Inflammatory Allegations from the Indictment is hereby DENIED.”