2/ Chutkan: So at this point, you wouldn’t anticip proffering any actual evidence. It would be written submissions & if I feel like I need further evid we would discuss that? 

Govt.:Correct. At conclusion of briefing we can have that discussion or court can order hearing or witness testim. We have begun writing opening brief, but anticip it wd take about 2-3 wks to complete.

We want to leave the date to court’s discretion, but a deadline for the government’s brief in late Sept would be good

3/ I’m posting these out of order.

Klasfeld:

Lauro calls the prosecution's proposal "enormously prejudicial" to Trump.

After Lauro claims that SCOTUS found Trump's conversations with Pence were official, Chutkan cuts him off: "No, I would have to disagree with you. They have sent it back to me to figure that out."

4/ Pagliery with color as always:

It's too bad I can't take any pictures
to analyze.

Trump defense lawyer Todd Blanche always wears incredibly tight suits, and fellow attorney John F. Lauro has his jacket cut so tight the sides are straining.

5/ Via Zoe Tillman:

Chutkan: Good morning, it's been almost a year. (she quips that Trump lawyer John Lauro looks "rested")

Lauro responds to the effect of, life was almost meaningless without seeing you

Chutkan: "Enjoy it while it lasts"

6/ Josh Gerstein with the short version of this convo:

John Lauro is scrapping now a bit with Chutkan about the schedule. He says is a deeply unfair to use an "asymmetrical" process where the government goes first.

7/ Via Klasfeld:

The defense argues that Chutkan should find Trump's conversations with Pence official as a matter of law, but Chutkan says that she risks "reversal" if she does so in light of the SCOTUS ruling.

Chutkan (wryly): "I mean, I'm risking reversal no matter what I do."

Chutkan notes that SCOTUS ordered her to resolve the remaining immunity issues "forthwith."

She presses Lauro on why the defense is asking her to review their other motions first.

8/ Phang:
Chutkan to Trump lawyer, John Lauro: If I give the special counsel the time they’re asking for, the three weeks, why can’t you discuss discovery that you haven’t been given that relates to immunity?

“We can all walk and chew gum at the same time.”

Lauro: We need everything that we’re entitled to before we address these issues. The Supreme Court has already decided that the conversations between Trump and Pence is an official act.

Chutkan: Respectfully I disagree.

9/ Phang:

Chutkan: One of the things I have to decide is whether based on facts presented to me by the government if those conversations are outside the bounds of immunity.

“How do they overcome it without an evidentiary proffer?"

10/ Phang:
Chutkan: So you want witnesses and testimony and cross examination?

Lauro: Ultimately we do want that. But first we have to deal with these issues.

We want a process where we’re entitled to full and fair discovery and then we go first and argue our motion to dismiss.

“We feel your honor is going to dismiss this indictment after you hear from us in our motion papers."

12/ Sorry folks, I’m threading what I can before I leave, so spotty.

Phang:

Chutkan: Let's discuss this “sensitive time." I’ve said before, the election is not relevant here.

“This court is not concerned with the electoral schedule."

If you’re talking about the timing of legal issues with relation to when the election is, that's not something I'm going to consider.

“Oh I am definitely not getting drawn into an election dispute."

13/ I’ve missed a lot, but giving you bits and pieces.

Phang:

Lauro: We have outstanding issues that we will bring to their attention, but we need that discovery.

“What is the rush to judgment that the special counsel is suggesting?” That’s exactly the problem that the supreme court recognized in its opinion.

Chutkan: “We can’t even contemplate a trial date due to the looming appellate issues."

We have had a year of delay and there needs to be some forward motion in this case.

14/ Phang:

Chutkan: When the supreme court considered this case they had the indictment and if they thought it was permeated with issues that required dismissal they could have done it themselves.

15/ Lauro: the court can decide whether Trump’s conversations with Mike Pence are immune as a legal issue based on a defense motion to dismiss.

We need the discovery that we’ve requested. There’s discovery we still don't have access to due to technical issues.

In fact we’re still getting discovery. We got discovery throughout the period when the case was stayed. “We’re being put in an incredibly unfair position for no reason at all."

16/ Lauro: We’re talking about the presidency of the united States.

Chutkan: I’m not talking about the presidency, I’m talking about a four count indictment.

“It strikes me that what you’re trying to do is affect the presentation of evidence in this case as to not impinge on an election."

17/ Govt: There’s no additional discovery that we anticipate. Two days ago prosecutors provided the defense with all the grand jury material related to the superseding indictment.

Second point, the motion to dismiss the defense says that should happen regarding the Pence allegations, the supreme court’s decision was all about doing a fact analysis of all of this.

It would be impossible to make those determinations without looking at all of the evidence that the grand jury looked at.

18/ Did I mention I love Chutkan so far?

Lauro back up briefly to respond.

Chutkan: "I don’t need any more rhetoric on how sensitive this is."

Lauro: It’s not rhetoric, it’s a legal argument.

19/ Chutkan: Why can’t the gov file its opening brief, just considering the Pence stuff, and I rule on that issue alone. Why does it have to be piecemeal.

Lauro: If you decide the Pence stuff first it could end the case right then and there. Why waste all this time on months of briefing.

20/ Chutkan: The deadline for filing a motion like this has already passed.

Chutkan: You want to file this because there’s dicta in a concurrence. There’s binding DC Circuit precedent in this issue and you have a concurrence and an opinion written by another district judge which this court “doesn’t find persuasive."

Lauro: When you read Justice Thomas’ concurrence he’s telling us to file this motion.

21/ Gov.t: Third, the supreme court never says that if the pence allegations are immune that the indictment must go away.

Fourth, regarding speed/haste. Nine full pages have been struck from the superseding indictment. On July 10, the defendant and two of his attorneys filed a motion to dismiss his state court case based on the supreme court ruling that came out 9 days prior. The defense can move quickly and so can we.

22/ Rushing thru these before I have to leave, all from Phang:

[Starting a new thread about today's Chutkan hearing:]

Govt: Regardless of DC Circuit precedent the defense could have filed this motion and they didn’t.

Chutkan: I do think this motion could have been followed prior to the deadline. But I’m going to allow the defense to file for leave to file the motion. She wants to defense to include their argument for why DC Circuit precedent doesn’t foreclose such a motion.

23/ Now moving on to the defense’s anticipated motion to dismiss the case based on the grand jury being exposed to immunized conduct.

Chutkan: Will that be related just to the Pence evidence or other stuff as well?

Lauro: It will be focused on the Pence issue, but there might be some others.

Govt.: First the court must make those immunity determinations. If there’s no immunity then there’s no basis to their argument to dismiss the indictment based on exposure to immune conduct.

24/ Chutkan: Now let's talk about the motion to dismiss on statutory grounds.

(This motion was filed before case was stayed and was fully briefed. Chutkan dismissed the motion after the Supreme Court’s ruling pending further litigation. Now she says she will vacate her previous dismissal and reopen the motion for additional briefing.)

Lauro: I think immunity should be resolved first before we get to the statutory issues.

Chutkan: I agree, but I think we can do a number of things concurrently

25/ Now with regards to US v. Fischer (the SCOTUS case that narrowed one of the charges against Trump).

Chutkan says she’ll allow Lauro to raise any Fischer arguments in supplemental briefing to the defense’s previous motion to dismiss on statutory grounds.