Undeterred by Judge Chutkan, Donald Trump goes fishing

Earlier this week, Judge Tanya Chutkan denied Donald Trump’s motion to issue subpoenas to seven separate people and entities in the lead-up to the former president’s March 2024 trial in his federal election interference case. Those subpoenas were designed, Trump maintained, to obtain purportedly “missing” materials from the House Jan. 6 committee’s investigation as well as related correspondence and other documents, including those that Trump claimed would reflect where and how those materials were stored and/or if they were destroyed.

But citing a criminal defendant’s burden to prove that any documents sought through pretrial subpoenas are not only relevant but specifically identified, Chutkan rejected the motion in a seven-page order. Specifically, she observed that Trump already had all witness transcripts from the committee’s investigation — and that his bid for the other categories was so thinly supported, if not speculative, as to make his requests more akin to a “fishing expedition” than a good-faith effort to obtain admissible evidence.

Most defense lawyers would be chastened by a judge describing their quest for additional discovery as a fishing expedition. But most defense lawyers do not represent Trump, who responded only hours later with two additional motions. The first is a motion to compel specific categories of purportedly exculpatory information or impeachment evidence. The second is a motion to define the scope of the “prosecution team” so broadly that if granted, it would force the special counsel’s team to search for, collect and turn over records from a constellation of executive agencies as well as up, down and across the Justice Department. These motions are the legal equivalent of hanging a cheerful sign that reads, “Gone fishing.”

If you think I’m exaggerating, consider just three examples of what Trump argues he should be able to obtain.

First, Trump claims he is entitled to evidence concerning the classified records investigation of his former vice president, Mike Pence. Why? Because, in Trump’s ever-transactional mind, Pence not only told federal investigators lies about their interactions leading up to and on Jan. 6, but would only do so in exchange for a promise by the Justice Department not to prosecute Pence in connection with the limited classified materials his own team discovered in his home and voluntarily returned to the FBI. (There’s no public evidence to support such a theory.)

Second, Trump maintains he’s entitled to any materials reflecting Attorney General Merrick Garland’s and Deputy Attorney General Lisa Monaco’s consideration of the charging decisions. But in support of that demand, he cites only a Washington Post article that documents Garland and Monaco’s receipt of a briefing on the then-nascent Jan. 6 investigation in March 2021 and their later participation in a decision to charge Oath Keepers founder Stewart Rhodes with seditious conspiracy. Noticeably absent from the brief? Any allegation of Garland’s or Monaco’s specific involvement in his case, which was handed off to special counsel Jack Smith over a year ago in order to ensure the investigation would remain independent of political considerations. 

And third, and perhaps most absurdly of all, Trump insists he needs evidence related to the SolarWinds “SUNBURST” cyber attack that became public shortly after the 2020 election, despite not offering any allegations, much less proof, that that attack actually resulted in the infiltration or corruption of any municipalities’ voting machines, ballots or election-related infrastructure. Instead, noting the broad impact of that attack and the “grave risk” U.S. cybersecurity officials believed it posed to SolarWinds customers (including state and local governments), Trump simply assumes the 2020 election was impacted and meaningfully by that attack. Premising a discovery demand on that kind of assumption is the very essence of a fishing expedition.

There are numerous other examples of Trump’s illogic and speculation as drivers of his search for something — anything — to tarnish government witnesses’ credibility and to support his meritless claim that the case against him is itself election interference. But in the meantime, these motions also could help him achieve another objective: burying a single district court judge in all the pretrial filings PAC money can buy in the hopes that their sheer volume in and of itself can delay his trial.

Will it work? Watch this space.