Special counsel asks D.C. judge to bar Trump misinformation at trial

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Federal prosecutors have asked a judge to prohibit Donald Trump’s attorneys from introducing at his D.C. federal election obstruction trial “irrelevant disinformation” that is often part of Trump’s campaign stump speeches, including that President Biden coordinated with the Justice Department to bring criminal charges against him.

Special counsel Jack Smith filed on Wednesday what is known as a motion in limine, urging U.S. District Judge Tanya S. Chutkan to prohibit Trump from including certain arguments in his defense. Such filings are common in legal proceedings and aim to eliminate arguments at trial that prosecutors say are not supported by evidence or are irrelevant to the case, and could mislead jurors.

Among the potential defenses that Smith wants Chutkan, who is overseeing the case, to ban at trial: that law enforcement’s failure to properly prepare is to blame for the Jan. 6, 2021, attack on the U.S. Capitol. Trump has previously made this claim.

“Although the Court can recognize these efforts for what they are and disregard them, the jury — if subjected to them — may not,” the filing reads. “The Court should not permit the defendant to turn the courtroom into a forum in which he propagates irrelevant disinformation, and should reject his attempt to inject politics into this proceeding.”

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Prosecutors have filed similar motions in many of the hundreds of trials of people charged with storming the Capitol on Jan. 6. In those cases, prosecutors have typically sought to prohibit defense attorneys from arguing that their clients were exercising their First Amendment rights when they broke into the Capitol or that the police — acting as part of some sort of conspiracy — allowed the riot to happen.

The federal judges overseeing the cases at U.S. District Court in D.C. generally agree to those requests, unless a defendant testifies that he or she personally saw police allow rioters into the building. As Chutkan put it when presiding over the trial of Antony Vo in September, a defendant “can’t speculate as to what other people might have been doing. … He can simply say what he saw and what his observations led him to believe.”

Former federal prosecutor David Aaron said it is hard to determine the impact on Trump’s defense if Chutkan grants the special counsel’s request.

He said that it is typical for defense attorneys to throw out many arguments before trial to see what the judge allows to stick — and that it doesn’t always reflect what they eventually tell the jury. In a court filing last month, Trump asked for “all documents regarding” Ray Epps, a supporter of the former president who has been falsely accused of being an undercover operative, and John Nichols, a liberal journalist in Wisconsin who has been accused by right-wing media of encouraging violence at the Capitol on behalf of the “deep state.”

Trump’s lawyers also asked for any intelligence the government had on antifa, a group of far-left activists, on pipe bombs found near the Capitol on Jan. 6, and on “informants, cooperators [and] undercover agents … involved in the assistance, planning, or encouragement” of the events of that day.

“It is not unusual at all for a prosecutor to try to protect their case by trimming off these potentially irrelevant, or confusing or misleading areas in advance of trial,” Aaron said. “If Jack Smith prevails in these motions, it’s just another step in a normal criminal proceeding.”

The former president slammed the government’s filing on social media Wednesday afternoon, calling Smith’s motion “illegal” and “unconstitutional” and referring to the special counsel as Biden’s “errand boy.”

Trump is scheduled for trial in March on four federal charges related his efforts to overturn the 2020 election results: conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing a congressional proceeding and conspiracy against rights.

It is one of four criminal cases Trump is facing. He was indicted in federal court in Florida, accused of mishandling classified documents after leaving office and obstructing government efforts to retrieve the material; in Georgia state court over efforts to block Biden’s victory there; and in New York state court for allegedly falsifying business records related to a hush money payment during his 2016 presidential campaign.

Trump — who is again running for president and is the 2024 GOP front-runner — has denied guilt in all four cases and sought to push his trials beyond Election Day in November.

In the D.C. case, he is trying to get the indictment thrown out, appealing a ruling by Chutkan that he can be prosecuted for acts that occurred while he was in the White House. His trial also could be impacted by a separate case that will be reviewed in coming months by the Supreme Court and involves whether those involved in the Capitol riot can be prosecuted for obstruction.

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Chutkan has frozen the pretrial proceeding deadlines in the case while Trump appeals her ruling on presidential immunity. It is unclear if she will consider Smith’s latest request while much of the case is on pause. Legal experts say that however Chutkan eventually rules on Smith’s motion, Trump’s attorneys and prosecutors would probably not be able to appeal that ruling until after the trial is concluded.

In the 20-page filing Wednesday, prosecutors also said Trump should not be allowed to discuss at trial the consequences he may face if convicted or the burden of being indicted.

They argued that Trump’s team should be barred from blaming undercover agents, government informants or confidential sources for the violence at the Capitol — a baseless claim circulating in right-wing circles.

In trials of Jan. 6 defendants, defense attorneys have generally avoided blaming undercover operatives for the riot or insisting the election was stolen, though some have tried to inject those false claims into trials.

Brad Geyer, representing one of the Oath Keepers, tried and failed to elicit helpful testimony about “goons and provocateurs” in the crowd.

“I’m not going to turn this into a trial that is a referendum on whether the U.S. Capitol Police adequately protected the U.S. Capitol that day,” Judge Amit Mehta said before the trial.

Geyer did suggest in his closing argument that the riot was infiltrated in some way; jurors were instructed, as is typical, that those arguments were not evidence.

Alan Hostetter, a former California police chief who breached the Capitol on Jan. 6, represented himself at trial and was allowed to repeated falsehoods about the election and the riot. But that was a bench trial, where the judge decides the case and there is no concern about misleading jurors.

In his rulings during the case, Judge Royce C. Lamberth repeatedly told Hostetter that there was no evidence to back up his claims of a government plot. He was found guilty of four felonies, including obstruction of an official proceeding, and sentenced to more than 11 years in prison.

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Special counsel asks D.C. judge to bar Trump misinformation at trial

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