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ancianita

ancianita's Journal
ancianita's Journal
October 12, 2023

Hamas 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.


October 12, 2023

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.

Ayman Mohyeldin (Arabic: أيمن محيى الدين, IPA: [ˈʔæjmæn ˈmoħj edˈdiːn]; born April 18, 1979) is an Egyptian-born political commentator based in New York for NBC News and MSNBC.

... 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 2008–09 Gaza War[3] as well as the Arab Spring....

October 11, 2023

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



Here’s 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.
Here’s Jack Smith's filing edited for readability:

10/10/2023 Docket Entry #98


MOTION for Formal Pretrial Notice of the Defendant's Intent to Rely on Advice-of-Counsel Defense by USA as to DONALD J. TRUMP.


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. *
*

GOVERNMENT’S OPPOSED MOTION FOR FORMAL PRETRIAL NOTICE OF
THE DEFENDANT’S 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 Government’s 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, it’s 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 defendant’s 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 that’s 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 defense—an 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 counsel’s 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 defendant’s 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 defendant’s 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 attorney’s advice is based, the

attorney’s 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 trial—or, worse, when jeopardy attaches—to 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 Government’s early and robust discovery productions. Courts have also

denied pretrial notice because the defense was unlikely to arise during the Government’s 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 government’s case ….”). Here though, given the nature of the charges and the defense




Page 7 of 14


statements regarding the defendant’s 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 Court—notice 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 defendant’s

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 has—and does not have—that 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

defendant’s 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


attorney’s 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. Nat’l 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 Court’s 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 Government’s 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, and—if not done in advance of trial—“risks

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 Government’s 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, 2023—the 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 defendant’s requirement to produce

discovery by requiring notice at that point.

The defendant’s 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 counsel’s

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 defendant’s “case in chief” means not only what the defendant will introduce after
the Government rests, but also substantive, non-impeachment evidence introduced during the
Government’s 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 defendant’s 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 defendant’s 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 defendant’s

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

Government’s motion, and for good cause shown, the motion is GRANTED.

The defendant’s 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

October 11, 2023

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 it’s 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.



Here’s 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.
Here’s Jack Smith's filing:


10/10/2023 Docket Entry #97

MOTION for Order for Fair and Protective Jury Procedures by USA as to DONALD J. TRUMP. (Gaston, Molly) (Entered: 10/10/2023)




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. *
*

GOVERNMENT’S OPPOSED MOTION FOR
FAIR AND PROTECTIVE JURY PROCEDURES

Trial in this matter—in 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 power—is 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 practice—standard among courts

in this District—of 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 Court’s 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, 594–595 (1976)) (“Jury selection . . . is ‘particularly within the province of the trial

judge’”); United States v. Tsarnaev, 595 U.S. 302, 313 (2022) (“A trial court’s 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) (Court’s 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 judge’s 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

defendant’s record of using public social media platforms in an intimidating manner—further

evinced by events in a separate trial in New York last week—the 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

Court’s 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 Court’s 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 Court’s 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 defendant’s 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 process’s purpose of weeding out partial

or unfair jurors and helping the parties exercise challenges. See Mu’Min 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) (defendant’s motion for new

trial based on unfounded claim that juror had misrepresented social media activity denied in part

because defense had necessary information from juror’s 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

available—especially if it results in any kind of contact with a potential juror—would 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 Court’s 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 juror’s, or excused juror’s, 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 investigation—whether 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 juror’s identity. This limitation is consistent with this District’s 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, “It’s 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 juror’s 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

Court’s 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 District’s standard prohibition against publicizing jurors’ identities. Chief among

them is the defendant’s continued use of social media as a weapon of intimidation in court

proceedings. In addition to the record before the Court from the Government’s previous filings,

see ECF Nos. 57 & 64, just last week the defendant escalated his conduct and publicly attacked

the trial judge’s law clerk in his pending civil fraud trial in New York State Supreme Court. The

defendant did so by reposting on his Truth Social account—which has 6.4 million followers—a

photograph of the law clerk and a United States Senator with the baseless caption, “[Senator’s]

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 defendant—after

apparently reviewing opposition research on court staff—chose 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 defendant’s most recent concerning conduct, as the Court is aware, the

defendant’s 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 that—in the

context of the defendant’s repeated attacks on “courts, judges, various law enforcement officials

and other public officials, and even individual jurors in other matters”—“f 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 District’s 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 9, 2023

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

On 7 October 2023, Palestinian militant groups[f] led by Hamas launched a large-scale invasion and offensive against Israel from the Gaza Strip, breaking through the Gaza–Israel barrier and forcing entry via the Gaza border crossings, into nearby settlements in Israel and military installations. Hamas called it Operation al-Aqsa Storm. It is the first direct conflict within Israel's boundaries since the 1948 Arab–Israeli War.[30][31] Hostilities were initiated in the early morning with a rocket barrage against Israel and vehicle-transported incursions into Israeli territory, with several attacks on surrounding Israeli civilian communities and Israeli military bases. Some observers have referred to these events as the beginning of a third Palestinian intifada.[g] For the first time since the 1973 Yom Kippur War, which took place almost exactly fifty years before the current attacks, Israel formally declared war.[33] An Israeli operation launched in response has been called Iron Swords by the IDF.[34]

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]
October 9, 2023

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 aren’t televised or broadcast, it’s 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., Israel’s War, and the House speaker drama).

To that end, the scheduling and excerpts from our side’s key filings help us know many overall trial arguments in advance.

I’m prioritizing DC Federal docket filings in detail for now, since it’s 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.
Here’s 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.
Here’s Judge Chutkan's docket filing edited or bolded for readability:




10/06/2023 Docket Entry #82


OPINION and ORDER as to DONALD J. TRUMP
-- 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 Defendant’s 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 Counsel’s 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 should—or even could—order the

government to declassify any portion of it. Contra Dep’t 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 government’s 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 government’s CIPA § 4 motion. CIPA Motion at 2–3. 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 Amendment’s 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 315–16). 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

CIPA’s 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 Hr’g Tr., ECF No. 38 at 42–51. 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 4–5. 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 8–9, 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 court’s

discretion to do so is broad. See Fed. R. Crim. P. 12 advisory committee’s 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 defense’s anticipated dispositive motions—like

motions to dismiss—are 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, 2023—the 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 issues—such as the sufficiency of the government’s pleadings—that 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 Moore’s Federal Practice § 612.02). The defense

confirmed at the August 28, 2023 hearing that it had already begun work on those motions.

Protective Order Hr’g Tr., ECF No. 38 at 33–36, 51–52. 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 motions—and the defense’s

arguments in support of them—may arise from the defense’s 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 Hr’g Tr., ECF No. 38 at 17–18,

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, Defendant’s 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

government’s 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 defense’s 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, Defendant’s Motion for Extension of Time to File Pretrial Motions, ECF No.

63, is hereby GRANTED in part and DENIED in part. The court’s 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 motion’s filing;

and any reply shall be filed within ten days of the opposition’s filing.



Date: October 6, 2023

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge


October 9, 2023

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.)


A plea for network defenders and software manufacturers to fix common problems.

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 misconfigurations—thus strengthening the security posture for customers—by 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 advisory—including the following—to 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]



Note: This advisory uses the MITRE ATT&CK® for Enterprise framework, version 13, and the MITRE D3FEND™cybersecurity countermeasures framework.[4],[5] See the Appendix: MITRE ATT&CK tactics and techniques section for tables summarizing the threat actors’ activity mapped to MITRE ATT&CK tactics and techniques, and the Mitigations section for MITRE D3FEND countermeasures.

For assistance with mapping malicious cyber activity to the MITRE ATT&CK framework, see CISA and MITRE ATT&CK’s Best Practices for MITRE ATT&CK Mapping and CISA’s Decider Tool.[6],[7]


https://www.cisa.gov/news-events/cybersecurity-advisories/aa23-278a


October 7, 2023

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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