Published by The Lawfare Institute
in Cooperation With
Tensions are high in the E. Barrett Prettyman courthouse, where U.S. District Judge Tanya Chutkan is holding a status conference and a hearing on classified material in Donald Trump’s Jan. 6 case. Jack Smith is present and seated in the front row of the gallery.
Trump’s defense team, John Lauro and Gregory Singer, find their seats at the defense table at 9:49 a.m. Todd Blanche breaks from the pack and saunters to the prosecutors’ table. Lauro studies his notes, Singer points off into the distance, Lauro’s eyes follow. It’s 9:51, and Blanche still hasn’t returned. Lauro pulls out his phone, tilts his head, and presents the screen to Singer. It’s 9:54, and Blanche still hasn’t returned.
Blanche is busy shaking hands with government attorneys Thomas Windom and Molly Gaston. He whispers in Windom’s ear, and the pair chuckle and whisper again. When Blanche finally finds his seat at the defense table before the hearing starts, Lauro smiles but his lips remain pursed.
The courtroom is tense because the parties are far apart on a high-stakes issue that’s slated to be decided today: when Trump will face trial in the Jan. 6 case and, specifically, whether the trial will take place before or after the 2024 election. The prosecution has sought a trial date in early 2024. Trump’s lawyers have asked for a trial date in 2026. Judge Chutkan will decide today, at least on a tentative basis, who wins and who loses on this fateful question.
Chutkan enters the room at 10:01 a.m. She wears a faint smile as Gaston approaches the podium and introduces herself for the government. Lauro introduces himself from the table but then walks briskly to the podium and says, “John Lauro. On behalf of President Trump.” His voice is stern, his demeanor austere.
The first order of business is the Defendant’s Motion for Exclusion of Time Under Speedy Trial Act. The defense had requested that the time between indictment and the status conference be excluded when computing the date for a speedy trial. Prosecutors had opposed this motion, but they acknowledged in their brief that “all of the time since the defendant's initial appearance has already been and continues to be excluded under the Act.” Chutkan grants defense’s motion, excluding the time between Aug. 3 and Aug. 28 in computing the date for a speedy trial.
Then the rubber meets the road; it’s time to discuss a trial date. The government has asked for January 2024. The defense says it needs more time—two more years, to be exact. It wants a trial in April 2026—the earliest the defense says it would be able to put on a complete defense for their client. “The proposals are far apart,” starts Chutkan, “and neither of them is acceptable.” Gaston scribbles something down. Lauro stares blankly at the bench.
Chutkan reminds the parties of her obligations in this case. She must balance the public’s interest in having a fair and timely administration of justice while upholding the defendant’s right to due process. But “[s]etting a trial date should not depend on the defendant’s professional and personal obligations,” Chutkan states plainly. “Mr. Trump must make any trial date work.” She’d expect the same from, say, a professional athlete. “It would be wrong for me to accommodate her [the athlete’s] schedule.” The same standard would apply to the former president, she concludes.
She’s not done yet. “There is a societal interest separate from and in opposition to the interest of the accused,” she starts again. That is the public’s interest in having a fair and timely administration of justice, and also in “reduc[ing] the defendant’s opportunity to commit crimes on pretrial release.” There’s also a third public interest: A delay may place the prosecutors at a disadvantage. “Witnesses may become unavailable, memories may fade,” Chutkan notes. “The Sixth Amendment guarantees adequate representation of counsel[,]” but that does not mean counsel is “entitled to unlimited preparation time.”
She now addresses the defense’s motion. The defense’s suggestion that the median time from commencement of a criminal case to jury trial in Section 371 charges in the Jan. 6 context is 29.4 months “is a bit misleading,” Chutkan concludes. “As an initial matter, that [median] time runs through the commencement of sentencing,” not the beginning of trial. Moreover, the Jan. 6 cases cited in defense’s motion—including one that Chutkan oversaw—“were brought in 2021 during the pandemic and that had an impact on the time it took to resolve those matters.” Some also involved co-defendants, which prolonged the process. Neither an ongoing pandemic nor multiple co-defendants are issues in this case, states Chutkan.
So how much time does defense need to build an adequate defense?
Gaston rises to address the question. “Defense argues they need years,” she remarks. But that would be unreasonable because “[a]t this point, discovery is now substantially complete,” she argues.
The government made a fifth production last night, she notes, rounding out the total number of pages delivered to 12.8 million. “But the number of pages is not the best metric of measuring such things,” she adds. Of those 12.8 million pages, approximately 25 percent, or 3 million pages, are associated with Trump’s campaign, several political action committees (PACs), and the United States Secret Service. “Hundreds of thousands of pages are from public litigation,” and 120,000 pages are from the National Archives, Gaston states.
Would much of these documents have been reviewed by Trump’s counsel for privilege before they were turned over, asks Chutkan. Gaston responds in the affirmative and continues that 7.8 million pages are publicly available information, including social media posts, House select committee reports, and data gathered by consultants affiliated with Trump who were dispatched to look into election issues. The rest of the 5 million documents include materials such as grand jury transcripts and accompanying exhibits, which the defendant already has. In other words, many of these documents are duplicative.
But “how much of discovery could be categorized as witness statements and notes?” asks Chutkan. Gaston isn’t sure. She flips through some papers at the podium. Thirty seconds go by. Her colleague, Windom, starts flipping through his notes from his seat at the table. Chutkan is unbothered by the brief pause. She waits. She jots a few notes down. At last, Gaston responds: “Your Honor, 58,000 pages are from witness interview folders”; this includes transcripts of the interviews, as well as audio recordings. The transcripts, audio recordings, and accompanying exhibits have been turned over to the defense “in an organized fashion,” says Gaston.
The judge and counsel finish by tying up loose ends. Of the open source material available, such as tweets and Truth Social posts, Gaston states the total is 27,000 pages. And 25 percent of the first production and 20 percent of the second production include documents from the Trump campaign and a few different PACs. And in the key documents page, Gaston notes that the 47,000 pages include case agent summary testimony and exhibits introduced through the grand jury, such as transcripts of witness testimony and testimony before the Jan. 6 House select committee. Finally, nearly 300 pages are “labeled and named according to the paragraph of the indictment they support.” What these 300 pages represent is “essentially a roadmap,” concludes Gaston. “These are the documents the government may use at trial.”
Chutkan sits back in her chair for a moment and takes it all in. “I’ll note that many years ago, when I was trying murder and conspiracy cases in Superior Court, we got witness names on the day of trial” and testimony in the grand jury sometimes after a witness testified, she says. “While discovery rules of this court provide far more disclosure, the manner in which discovery has been organized here” indicates the government has made a considerable effort to expedite review “beyond their normal obligations.”
Why doesn’t that give the defense enough time to put together a defense? Lauro is up on his feet.
“Mr. Trump,” he starts, then corrects himself, “President Trump is entitled to a fair trial.” His voice is raised, and it reverberates. Blanche leans back in his chair, observing his co-counsel from a distance. Lauro starts again: “The president is entitled to a fair trial.” And then gesturing to the prosecution, he says, “This is a request for a show trial! Not a speedy trial. … For a federal prosecutor to suggest we could go to trial in four months is absurd and ridiculous and a violation of our oath to justice.”
He’s not shouting, but he’s not quite talking either. He’s barking.
Chutkan studies him during his monologue, says “absolutely” when he notes his obligations as a defense lawyer to represent his client fairly, but she doesn’t take the bait.
“Let’s take the temperature down, Mr. Lauro,” she states.
But Lauro has just begun. “I’ve been doing this for 40 years. This is a sacred obligation. … [I]t’s not easy when you have the entire government amassed against you.” Chutkan attempts to interject, but Lauro is quick and unrelenting:
President Trump stands before you, an innocent man. He’s entitled to counsel … counsel that can prepare adequately. … We’re talking about nine terabytes of information. I have to go through that information, I have to sort through it. I have to cross-reference. I need to think about impeachment, I need to think about corroborative material. … For the government to suggest that we can do that in four months is an outrage to justice. Not once have they talked about justice. … They can give me key documents, that’s very nice of them. That’s very kind—”
And before he can finish, Chutkan raises her hand and looks at him sternly. “Mr. Lauro,” she starts, seated tall in her chair but still measured, “let’s turn the temperature down.”
Lauro complies this time. Chutkan is back in the driver’s seat. “Let’s not overlook the fact that Mr. Trump has considerable resources that every other defendant does not,” she starts. “Given how much discovery has been produced in electronic, searchable form, and given that substantial portion has been reviewed by Trump” and his team, “why won’t the manner in which discovery has been turned over speed up your review?”
Because, starts Lauro, “we, as his criminal defense lawyers,” have not had access to the documents from the National Archives, the Justice Department, the PACs, and the Secret Service.
“But some of that material is not new to you,” Chutkan poses. “Certainly it's been reviewed by attorneys of Mr. Trump—”
“But that wasn’t us,” Lauro interjects.
“Some of these statements are your client’s own creation,” she notes. “This may have been new to you, but it has been reviewed at least for privilege” by your client’s lawyers. “That’s not brand new information is it?”
“Of course it is. Of course.” Lauro is visibly exasperated. “To a criminal defense lawyer it’s brand new. It’s like saying to a CEO before Your Honor, … that they’ve seen this information already. Why do they need time to prepare?” But that’s different, says Chutkan, because unlike a CEO of a company who may have never seen the relevant documents, the materials in this case were created by Trump himself. Still, Lauro remains steadfast. “It would be a miscarriage of justice to not look at the information anew as a criminal defense lawyer.”
Lauro decides to simplify things to make his point. He reminds Chutkan of the woes of preparing for trial: “I’ve worked these large cases, these cases are complex. You’ve been through it.” Chutkan, a former public defender, stares blankly at counsel. He continues, “You have to do searches with key terms. You have to organize those documents. You have to cross reference them with what other people say. You have to organize them. I like to write a narrative timeline. I like to be prepared for trial.” Oh, and don’t forget the many videos I have to go through, Lauro reminds the judge. But why not just read the transcripts, Chutkan suggests? Simple, he responds. Because there are nine terabytes of information and 12 million pages. That’s a lot.
At some point, Lauro digresses. His voice rises again as he reminds the court that “[n]ever in the history of the United States have we seen a case of this magnitude go to trial in four months.” And that “[t]his man’s liberty and life is at stake and he deserves a fair trial.” And that “[e]very single person in the United States deserves a fair trial.”
Chutkan shakes her head. “I understand that, but you are not going to get two more years. It’s not going to trial in 2026.” She reminds counsel that the “grand jury investigation in this case has been known since September 2022. That’s been public knowledge. The identity of the witnesses … has been known. And given that Trump knows the witnesses the government could call … why would the defense need two years to investigate?”
Lauro pauses for a moment. “There is not an obligation for a defense attorney to begin an investigation when we don’t even know the charges,” he states calmly.
Chutkan leans into the mic and raises an eyebrow, “But a good defense attorney would already start” investigating, she states.
“I wasn’t hired at the time,” Lauro replies. The defense didn’t even know what the “statutes at issue” were. “How could we go into a dark room and figure out what they’re investigating?”
“We’re doing everything that a diligent lawyer would do. … It would be miscarriage of justice if the truth would not be sustained in court,” he states emphatically.
Chutkan reminds Lauro that “despite his rhetoric,” a significant amount of [discovery] is duplicative and already in Trump’s possession. Moreover, Trump has been represented by counsel during the pendency of this investigation. “You’ve known it was coming. Trump’s counsel knows it was coming. Any able, zealous defense counsel would not be sitting on his hands waiting for an indictment. A lot of this material was in his hands or in the hands of his counsel before indictment.” She ends with a final question for Lauro: What is a fair amount of time to prepare?
He doesn’t answer the question. He instead reminds the judge he was hired a month and half ago. He pleads with Chutkan: “This is a question of whether one man, one U.S. citizen, gets a free trial.” He points his index finger at the podium. “I am saying without question, we cannot be ready under the circumstances for this case unless we have a reasonable amount of time consistent with justice… and candidly the jury is … entitled to see that counsel is prepared.” He’s chosen this as the hill to die on. But he doesn't answer the question. Blanche is seated back in his chair. He watches intently, expressionless.
Chutkan throws Lauro one last bone and asks him to explain the novel legal issues that may lengthen the time necessary for the defense to prepare its case. Lauro relaxes and starts with an inside voice. There’s the executive immunity point, which he notes is ”essentially indict[ing] a president for being president.” He promises a “very very unique and extensive motion dealing with executive immunity” sometime in the coming week.
Lauro also notes his plans to file a selective prosecution motion because “the prosecutors’ boss” (which is to say, President Joe Biden) “is running a presidential campaign.” To that point, this is the first time 18 U.S.C. § 371 has been used against a political opponent, so that makes it a novel issue. The obstructions statute as applied in this case is also a novel issue, not to mention the First Amendment issues and Rule 17 subpoenas, all of which are very, very novel issues, says Lauro. “They are going to be briefed fully by the defense. Not only are we going to deal with a host of factual issues, [but] we’re going to be back many many times to argue them here.” To this, Chutkan smiles widely, and Lauro looks pleased.
“I know you’re smiling, your honor.” He returns a toothy smile of his own.
Gaston now returns to the podium. Chutkan asks her to respond to Lauro.
“Mr. Lauro resisted answering your question on the exact time needed to review the documents because he doesn't want to admit that the technology would enable him to be prepared much earlier than 2026,” Gaston says. How does she know this? For several reasons. First, in advance of the indictment, the House select committee made public large amounts of evidence, and Trump himself posted many videos and messages on social media about the probe—material that is thus not new to the defense. When the indictment was finally unsealed, “Mr. Lauro called the indictment a regurgitation of the Jan. 6 Committee report.”
Second, there were five sealed proceedings between August 2022 and March 2023 about the scope of testimony for 14 grand jury witnesses. Chutkan nods at this point. Trump was therefore put on notice. And finally, Trump has a team of experienced attorneys working for him, including four counsels of record and two attorneys who attended arraignment and who were involved with pre-indictment preparations. Not to mention Lauro, himself, who has gone on television and podcasts outlining the details of the defense’s legal theory and noting how he’s read Mike Pence’s book twice and is planning a cross-examination accordingly. Chutkan again nods.
“We are not starting fresh at indictment in this case,” Gaston states. Nor are the defense’s issues particularly novel, she notes. If defense raises an executive immunity issue, “we’ll respond, and the court can consider that. … The thing that all of this shows is the importance of setting a trial date and working backwards with a schedule,” because, ultimately, the court has a case before it in which the senior-most official in the United States is accused of “historic crimes, attempt[ing] to overturn the presidential election, disenfranchis[ing] millions of voters, [and] obstruct[ing] the peaceful transition of power,” Gaston says. “There is a strong public interest” in having these claims heard “in public court.”
Chutkan takes down the last bit of notes from Gaston and looks up at counsel. She proposes to digress a bit. The Classified Information Procedures Act (CIPA) is on her mind. “Because such procedures might affect [the] trial date, I think we should discuss it now.” The parties agree.
As the judge reminds the court, “CIPA establishes a procedure about how classified information should be handled in a criminal trial. ... The government filed a consent motion—probably a last joint filing, which is such a nice way to start the hearing,” Chutkan grins. She granted the motions.
Now she wants to know how the parties plan to proceed. Under CIPA, Sections 5 and 6, three steps govern how classified information should be handled. First, under Section 5, the defense files a pretrial notice identifying the classified information it anticipates using. Following this, under Section 6, the government has the authority to file a motion for a hearing to determine the relevance of the information. Finally, the government can move to substitute the classified information with unclassified material.
Windom approaches the podium and states that the government is not planning on using any classified information in its case in chief. But since the defense might use classified information, Windom notes that the government has turned over a “limited amount of classified information,” including five to 10 non-duplicative documents totaling fewer than 100 pages, and transcripts of witness interviews totaling 225-250 pages. The defense can review this information as soon as Blanche (who currently has an interim clearance) gets his top secret clearance. And if the defense decides to use this information in its case in chief, the government can move quickly to file a Section 6 hearing. “We will need two weeks to make the motion,” Windom concludes.
He steps back, and Blanche approaches the podium. He’s different from Lauro. His head is tilted in a slight bow; his hand remains on his chest when he speaks. He’s humble but sharp. He’s playing the good cop.
He admits his clearance process is ongoing. “It’s completely out of my control.” He notes that in Trump’s case in the Southern District of Florida, he “anticipates spending a fair amount of time [there] and into October with CIPA discovery in that case.” He acknowledges that the volume of classified material in this case is relatively small but requests that any CIPA-related motions the defense must file be set for 30 days after Lauro gets his security clearance. Sensing the judge’s unease with the proposal, he adds that the clearance process “doesn’t take that long. I started the process 45 days ago in the Southern District of Florida. … The Special Counsel’s office was able to expedite the process in the Florida case. I think they can here too.” Chutkan smiles, “Oh they will try.”
Blanche smiles in return and sits down.
Windom takes the podium and reinforces the government’s position that the deadline for a Section 5 CIPA motion be set to 30 days after Blanche gets his final clearance, for Blanche “can make a determination on his own, and he can speak to Lauro” who will have interim clearance by then.
Chutkan says she is inclined to keep the schedule and will delay things depending on clearance issues. She asks Lauro what other motions he intends to file, in addition to his selective prosecution and presidential immunity motions. He states that he intends to file motions to dismiss on each of the conspiracy charges.
And what about prosecutors? The prosecution intends to file motions in limine and Rule 17 motions.
And with that, at 11:14 a.m., Chutkan calls recess for 10 minutes.
The recess takes only five minutes.
When court resumes, Chutkan is ready to set a trial schedule.
“I understand all too well the need for counsel to have enough time to adequately prepare. … I take seriously … that Mr. Trump should be treated like any other defendant.” But Chutkan draws a distinction between this case and the Supreme Court case the defense relies on in its motion, a case by the name of Powell v. Alabama. In that case, also known as the Scottsboro case, where Black men were convicted of raping a white woman, “the attitude of the community was of great hostility. The defendant's trial began six days after indictment. The defendants felt there was denial of due process.”
This case, the judge notes, for any number of reasons, is “profoundly different from Powell.” Trump is represented by zealous and competent attorneys, and discovery has already been provided to defense or is duplicative. The grand jury convened back in September 2022. Trump knew about the investigation for nearly a year. Trump is not detained, and he does not lack adequate representation.
In the judge’s view, a trial date of March 4, 2024, should give the defense adequate time to prepare for trial.
“This timeline does not move the case forward with the haste of the mob,” she concludes.
Lauro, however, objects. “On behalf of President Trump, we will certainly abide by Your Honor’s ruling … but we will not be able to provide adequate representation.” The trial date, he argues, will deny the president effective assistance of counsel. It is “inconsistent with President Trump’s right to due process.”
Chutkan says his objection is noted for the record. Before court adjourns, Gaston raises one final issue: Lauro’s public statements that the defense intends to poll the D.C. public—where trial is anticipated—to gauge public biases and determine whether a change of venue would be appropriate. Gaston raises concerns that certain questions, depending on how they’re phrased in the poll, may influence the jury pool. She requests the parties be briefed before the defense releases such a poll.
Lauro is not having it. He approaches the podium and says something to the effect of why should we? It’s a core right for the defense to poll the public, he states.
Chutkan agrees that such polling could sully the jury pool and requests that counsel let the court know if the defense intends to poll the public.
“I’m certainly not going to share it with the United States government,” he responds.
She instructs him again to notify the court ex parte if he intends to poll. Lauro nods slowly. He turns his back to the judge and walks back to his seat.