We have a report from the Washington Post on this morning’s hearing on the protective order. No paywall.

U.S. District Judge Tanya S. Chutkan said a number of interesting things in the hearing. For example, the “existence of a political campaign” will not have a bearing on her decisions. Trump’s running for president should not interfere with the “orderly administration of justice.” His campaign schedule will have to work around the trial schedule, not the other way around.

Also, she said that while Trump does have a right to freedom of speech, that right is not absolute,

The judge did warn that despite the limits of the protective order, all of Trump’s behavior and statements are covered by his conditions of release. So regardless of whether his statements are made from disclosures derived from discovery or not, if they have the affect of interfering with the administration of justice or intimidating or harassing witnesses, the judge will be “scrutinizing them very carefully.”

I’ll add to this post if I hear anything more.

Update: Politico says,

U.S. District Judge Tanya Chutkan warned Donald Trump and his attorney Friday that repeated “inflammatory” statements about his latest criminal prosecution would force her to speed his trial on charges related to his bid to subvert the 2020 election.

“I caution you and your client to take special care in your public statements about this case,” Chutkan told Trump lawyer John Lauro during a hearing. “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”

Did you hear that, Trump?

Update: Here is the judge’s protective order. Look especially at item 10, about restrictions being put on Trump when he’s viewing Sensitive Materials.

I’ll let Lawrence O’Donnell ramble a bit.

Trump is doing his best to stir up violence against anyone involved in prosecuting him. It appears the man shot by FBI agents in Utah yesterday had been motivated by Trump to make the threats that caught the agency’s attention. There is a growing consensus that we’re unlikely to see another January 6 style mass mob, but there is increasing likelihood of lone wolf terrorists, snipers, assassins. “We are witnessing Trump telling America that if he doesn’t get his way — regardless of democratic norms like elections or the rule of law — then you will get violence,” it says here.

Judge Tanya Chutkan needs beefed-up security. So much muck has been thrown at Fulton County District Attorney Fani Willis that she has told her staff to be careful and not respond to any of it.  See the actual ad Trump’s campaign is running against the prosecutors working to bring him to justice.

Any other defendant would have been slammed by the courts for this behavior. He’d be in jail already. But everyone is afraid to penalize Trump. This is why he is so dangerous. His threats and cult following have given him power. And you know he’s not going to follow whatever protective order Judge Chutkan issues. They’re saying that if he starts publicly intimidating witnesses, that would be a separate crime. He could be charged. Charging him just seems to encourage him.

Jack Smith today proposed a start date of January 2 for the J5 trial. The filing document begins:

In its August 3, 2023, Minute Order, the Court directed the Government to “file a brief proposing a trial date and providing an estimate of the time required to set forth the prosecution’s case in chief” at trial. The Government proposes that trial begin on January 2, 2024, and estimates that its case in chief will take no longer than four to six weeks. This trial date, and the proposed schedule outlined below, would give the defendant time to review the discovery in this case and prepare a defense, and would allow the Court and parties to fully litigate any pre-trial legal issues. Most importantly, a January 2 trial date would vindicate the public’s strong interest in a speedy trial—an interest guaranteed by the Constitution and federal law in all cases, but of particular significance here, where the defendant, a former president, is charged with conspiring
to overturn the legitimate results of the 2020 presidential election, obstruct the certification of the election results, and discount citizens’ legitimate votes.

Go to page 3 and begin reading at “The Constitution and Federal Law Provide that a Speedy Trial is in the Public’s Interest and in the Interests of Justice,” where it’s argued that the public needs a speedy trial in this matter.

In Other News: Clarence Thomas has taken undisclosed benefits from every right-leaning rich guy in the Western Hemisphere. This is a scale of corruption unprecedented in U.S. federal court history, I understand. If he’s still on the bench next time the Dems control both houses of Congress, they really need to impeach and remove him.I

In More Other News: The wildfires in Hawaii are so terribly tragic. I have nothing to say except that it’s such a damn shame.

Philip Bump at WaPo reminds us why Trump can’t be trusted with evidence.

This morning already Trump called for Judge Tanya Chutkan to be removed from his pending J6 trial. This was after Judge Chutkan denied Trump’s lawyers more time to respond to Jack Smith’s request for a protective order regarding evidence. See the update to the last post about that.

This morning on Truth Social, Trump wrote: “THERE IS NO WAY I CAN GET A FAIR TRIAL WITH THE JUDGE “ASSIGNED” TO THE RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE. EVERYBODY KNOWS THIS, AND SO DOES SHE! WE WILL BE IMMEDIATELY ASKING FOR RECUSAL OF THIS JUDGE ON VERY POWERFUL GROUNDS, AND LIKEWISE FOR VENUE CHANGE, OUT IF [sic] D.C.”

I believe Trump’s chances of getting what he wants are, um, low. See emptywheel on this point. Also see emptywheel for more details on the proposed protective order. It had been “in the works” since Wednesday.

Per emptywheel, on August 2 one of the prosecuting attorneys sent a proposed protective order to Trump attorney John Lauro for his approval/feedback. On August 3 and 4 the prosecution reached out to the Trump team for its response. On Friday afternoon Trump’s lawyer submitted their preferred protective order. DOJ objected, saying the Trump version “would leave large amounts of material completely unprotected in a way not contemplated by standard orders in” DC. The Trumpers responded, saying they hadn’t been given enough time to confer. And then Friday night Trump posted his “If you go after me, I’m coming after you!” threat.

Yesterday, Judge Chutkan ordered Trump to respond to the protective order request by 5 pm Monday

MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:00 PM on August 7, 2023, Defendant shall file a response to the government’s Motion for Protective Order, stating Defendant’s position on the Motion. If Defendant disagrees with any portion of the government’s proposed Protective Order, ECF No. 10-1, his response shall include a revised version of that Protective Order with any modifications in redline.

Trump lawyer Lauro moved for reconsideration, saying that the government had not conferred with him about the protective order, which was a lie. Yesterday the government responded by saying that the Trump side was holding things up and the government did, too, attempt to confer with Trump’s lawyers. Trump’s people asked for three more days to respond; this was denied.

And that takes us to Trump’s temper “truth” this morning, which didn’t exactly support his request for a more lenient protective order. Trump’s undisciplined posting has a lot to do with why the prosecution wants tight restrictions on evidence.

“All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public,” prosecutors wrote in the protective order request.

“Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him,” it continued.

In related news: Mike Pence says he hasn’t “ruled out” being a witness for the prosecution in Trump’s trial. Assuming he’s subpoenaed, will he have a choice?

Some time yesterday, Trump posted this “truth” on his social media platform.

Attorneys on Jack Smith’s team of prosecutors, in a court filing last night, called this to the attention of U.S. District Court Judge Tanya Chutkan, who will be overseeing Trump’s J6 trial. The prosecutors did not request a gag order, but they did request a protective order to prevent Trump and his legal team from revealing sensitive information in the evidence compiled by the prosecutors.

Jack McCordick writes at Vanity Fair,

In Friday’s filing, prosecutors claimed to have “a large amount of sensitive and confidential material” that it was prepared to send to Trump’s legal team. The material includes witness testimony, subpoena returns, and evidence obtained through search warrants.

Protective orders are fairly standard in criminal cases, but Smith’s office wrote that one would be “particularly important” in Trump’s case, as he “has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.” The request noted that Trump had already issued multiple social media posts that “either specifically or by implication” referenced the D.C. indictment, including the Truth Social post from earlier Friday evening.

Earlier in the week, Trump wrote on the social media site that “Dems don’t want to run against me or they would not be doing this unprecedented weaponization of ‘Justice.’ BUT SOON, IN 2024, IT WILL BE OUR TURN. MAGA!” Revenge and retribution have been favorite themes of Trump’s campaign: At his first rally in March, the former president said, “I am your warrior, I am your justice…I am your retribution.”

Smith’s office argued that if Trump “were to begin issuing public posts using details” from discovery, it could exert “a harmful chilling effect” on witnesses as the case unfolds.

In an unsigned statement released by a Trump spokesperson, it was claimed the social media post “was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.” The Koch Network and the Club for Growth are both funding efforts to stop Trump from getting the GOP nomination.

Especially if Judge Chutkan does issue a protective order, Trump’s lawyers will need to sit him down and explain how to use “disclaimers” when he posts something. Or maybe they’ll take his phone away and/or break his fingers.

At Thursday’s arraignment, Trump agreed not to talk about the case with any witnesses without lawyers present and not to attempt to influence  potential jurors or tamper with witnesses. And he was told that if he failed to comply with the conditions of his release, a warrant might be issued for his arrest. He’s not going to comply — especially since his current aides are likely going to be called as witnesses — so we’ll see if the court follows through.

Update: CNN reports,

A federal judge on Saturday denied a request from former President Donald Trump’s legal team for a deadline extension over the handling of evidence in the 2020 election subversion case.

Trump’s lawyers will have to respond by Monday afternoon to the Justice Department’s proposal for a protective order.

The decision from US District Judge Tanya Chutkan caps a flurry of activity in the case after special counsel Jack Smith’s team on Friday asked Chutkan to quickly set limits on what Trump’s team can do with the evidence that will be shared with them. Their request pointed to a post by Trump on Truth Social from earlier in the day to argue that the former president has a habit of speaking publicly about the details of the various legal proceedings he’s facing.

In related news — do see John Eastman Comes Clean: Hell Yes We Were Trying to Overthrow the Government at Talking Points Memo.

Jan 6th conspirators have spent more than two years claiming either that nothing really happened at all in the weeks leading up to January 6th or that it was just a peaceful protest that got a bit out of hand or that they were just making a good faith effort to follow the legal process. Eastman cuts through all of this and makes clear they were trying to overthrow (“abolish”) the government; they were justified in doing so; and the warrant for their actions is none other than the Declaration of Independence itself.

“Our Founders lay this case out,” says Eastman. “There’s actually a provision in the Declaration of Independence that a people will suffer abuses while they remain sufferable, tolerable while they remain tolerable. At some point abuses become so intolerable that it becomes not only their right but their duty to alter or abolish the existing government.”

“So that’s the question,” he tells Klingenstein. “Have the abuses or the threat of abuses become so intolerable that we have to be willing to push back?”

The answer for Eastman is clearly yes and that’s his justification for his and his associates extraordinary actions.

The article by Josh Marshall goes on to explain that the Declaration has no legal weight and that there is no protected right to overthrow the government in the U.S. Overthrowing the government is unlawful, unless you succeed and rewrite the laws real fast. The Declaration argues that there is a kind of moral right to overthrow a government when it “evinces a design to reduce them under absolute Despotism.” But if the Biden Administration is Eastman’s idea of “absolute Despotism” he has led a very sheltered life. I look forward to seeing Eastman’s argument used at trial against Trump, though.

In other news — Clarence Thomas’s $267,230 R.V. and the Friend Who Financed It.

The Trump legal team is struggling. If you didn’t watch Lawrence O’Donnell last night, do watch this bit now:

O’Donnell says this corroborates a portion of the new indictments; see paragraph 93. During a meeting on January 4, 2021, the indictment said, Trump directed Vice President Pence to either reject the ballots from the seven “targeted” states outright or send the ballots back to the seven states to have the state legislatures decide the outcome. Pence objected, as you know. This is a key part of the attempt to defraud the United States. And then in a television interview last night, Trump lawyer John Lauro told pretty much the same story:

“President Trump wanted to get to the truth. He desperately wanted to get to what happened in the 2020 cycle,” Trump’s attorney John Lauro said on Newsmax on Thursday evening. So, he said, “at the end he asked Mr. Pence to pause the voting” — that is, counting the submitted electors on Jan. 6, 2021 — “for 10 days, allow the state legislatures to weigh in and then they could make a determination to audit or reaudit or recertify.”

But Philip Bump points out in WaPo that Trump had already publicly admitted this in a tweet on the morning of January 6.

States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!

— Donald J. Trump (@realDonaldTrump) January 6, 2021

Plus, Trump said this in his rally speech:

Per the new indictments, there was no evidence that the election result for Joe Biden in the “targeted” states was inaccurate, and Trump knew that. Hence, fraud. What had O’Donnell gobsmacked was that Trump’s own lawyer readily admitted at least part of the fraud.

But this suggests to me that Trump’s legal team has decided it’s pointless to deny that Trump asked Pence to mess with ballots. They’re probably going to pretend Trump genuinely believed there was fraud. Zachary Beau at Axios writes,

Former President Trump’s legal team is teasing a risky defense to his historic third indictment: that Trump genuinely believed his own lies about election fraud — despite being told by dozens of his closest advisers, allies and agencies that they were baseless.

Why it matters: If they proceed to trial, Trump’s lawyers effectively could be asking a jury to believe that the former president was delusional — undermining special counsel Jack Smith’s core thesis that Trump “knowingly” sought to defraud the country.

What else have they got? I assume the Trump lawyers anticipated Trump would be charged with inciting the January 6 violence, but Jack Smith chose not to go there. So all their blathering about “free speech” is irrelevant.

But what will Trump say about this? Is Mr. Stable Genius going to allow his lawyers to claim he was too deluded to understand what people were telling him? I don’t think so. He’s going to want the trial to be about how the 2020 election was stolen from him.

Oh, I so hope the trial is televised.

I apologize for not posting more today. Last night starting at about 2 a.m. the bleeping carbon monoxide monitor (I think that’s what it is) in the bedroom started chirping. Loudly. It wanted new batteries, I assume. No way I could go back to sleep.  And it was too high on the wall for me to reach. Eventually I put earbuds in my ears and listened to Bach’s Goldberg Variations (played on piano by Jeremy Denk, which is a great recording) on a loop until dawn, which let me doze a bit. But I’ve been barely functional all day. The super hasn’t been by yet, but at least the battery must have died, because chirping stopped some time this afternoon.

If you missed Rachel Maddow’s indictment special last night, be sure to see this snip of remarks by Chris Hayes. He is a real genius at getting to the foundational, fundamental core of an issue.

Lincoln asked at the battlefield at Gettysburg “whether a nation of, by and for the people can long endure,” says @chrislhayes. “I feel profoundly gratified by reading this document because it calls the question in a way that it has not quite been called yet.” pic.twitter.com/KI9D9y6tPT

— All In with Chris Hayes (@allinwithchris) August 2, 2023

Arraignment tomorrow in D.C., 4 pm EST.

The J6 grand jury voted to indict today.

I hope y’all behaved while I was out. Now to the news —

Yesterday the House Overreach Committee had a closed-door hearing to interview Devon Archer, a former business associate of Hunter Biden. Today there are wildly different accounts of what Devon Archer said,

Per the Republicans, Devon Archer confirmed that President Biden was completely involved in Hunter Biden’s various business dealings and has been lying about that involvement all along. See, for example, committee chair James Comer’s statement on Archer’s testimony.

Per the Democrats, what Devon Archer confirmed is that Hunter Biden sold his access to Joe Biden as something of value he could exploit, but that access was an illusion. CNN:

Devon Archer told the House Oversight Committee on Monday that his former business partner, Hunter Biden, was selling the “illusion” of access to his father, according to a source familiar with the closed-door interview, the latest development in the Republican-led congressional investigations into the president’s son.

The source also reiterated that Archer provided no evidence connecting President Joe Biden to any of his son’s foreign business dealings.

This side of the story is saying that while Joe Biden sometimes did meet or spoke on the phone to Hunter’s business associates, when they did so they not discuss business. The New York Times:

President Biden met with and spoke to his son Hunter’s international business associates on a number of occasions over a decade as Hunter Biden sought to drum up consulting deals, including while his father was vice president, his former business partner told Congress on Monday.

However, in nearly five hours of closed-door testimony to the House Oversight Committee, Devon Archer, the former partner, asserted that the elder Mr. Biden was not party to any of his son’s business deals and that Hunter Biden had tried to sell the illusion that he was providing access to his powerful father when he was not, according to Democrats on the panel.

My impression is that Hunter did sometimes introduce people he was trying to impress to his father, when the opportunity arose. Archer’s testimony also suggested that sometimes Hunter would dial up his father during a business meeting and put him on speakerphone, but the conversation would be a brief “hey dad how’s it going?” thing, not a substantive discussion of business.

Democrats said that Mr. Archer had described the conversations in which the elder Mr. Biden participated as short and casual — about topics like the weather — and his interactions as little more than stopping by a dinner or a hotel for a brief handshake or a few pleasantries over the phone.

“The witness was very, very consistent that none of those conversations ever had to do with any business dealings or transactions,” said Representative Dan Goldman, Democrat of New York and a member of the Oversight Committee who participated in the interview. “They were purely what he called ‘casual conversation.’”

What I think happened: Hunter spent years putting his father in potentially incriminating situations, while Joe was trying to walk a very fine line between maintaining a relationship with his son without getting sucked into whatever the son was doing. And I assume Joe probably did have some idea what Hunter was up to, but that doesn’t mean he was  involved.

That paragraph above is way too much nuance for Republicans, of course. See also Philip Bump at WaPo, Another GOP ‘bombshell’ fails to detonate.  (No paywall.) Bump nicely debunks James Comer’s and Gym Jordan’s claims. None of that will stop certain House Republicans from demanding Joe Biden be impeached, of course.

In other news: Jack Smith’s J6 grand jury met today.

I will be spending Quality Time with family for a couple of days and will not be bringing my laptop. So consider this post an open thread to discuss whatever happens over this weekend.