Trump vs. Bankman-Fried
A seeming case of unequal justice.
While comparing two trials with different judges and stakes is fraught, I can’t help but juxtapose two rulings in high-profile cases yesterday.
POLITICO (“Judge warns Trump: ‘Inflammatory’ statements about election case could speed trial“):
U.S. District Judge Tanya Chutkan warned Donald Trump and his attorney Friday that repeated “inflammatory” statements about his latest criminal prosecution would force her to speed his trial on charges related to his bid to subvert the 2020 election.
“I caution you and your client to take special care in your public statements about this case,” Chutkan told Trump lawyer John Lauro during a hearing. “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”
Chutkan’s stark admonition came at the conclusion of her first courtroom session in the newest criminal case against the former president. The aim of the hearing was for special counsel Jack Smith’s prosecutors and Trump’s attorneys to hash out disputes about the handling of evidence in the case. Once Chutkan enters a so-called “protective order” governing evidence, prosecutors say they’re prepared to share millions of pages of documents with Trump’s team, jumpstarting the case and setting it on a path to trial.
But Chutkan, aware of the national spotlight on her oversight of the explosive case, repeatedly emphasized that she intended to keep politics out of the courtroom and treat Trump like any other criminal defendant. That included potential consequences if he makes statements that could be construed as harassing or threatening witnesses.
“The fact that he’s running a political campaign has to yield to the orderly administration of justice,” Chutkan said. “If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.”
“Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process,” Chutkan added later. “The more a party makes inflammatory statements about this case which could taint the jury pool … the greater the urgency will be that we proceed to trial quickly.”
The hearing was Chutkan’s first significant foray into the case, in which Trump stands charged with three conspiracies aimed at derailing the transfer of power to Joe Biden after the 2020 election. Trump has repeatedly assailed Chutkan, an Obama appointee, on social media and called for her recusal without citing a basis. Lauro, however, has not embraced Trump’s call.
Trump has also made comments about Mike Pence in recent days that prosecutors have flagged, given Pence’s likely turn as a star witness in the trial. Chutkan said she was not ruling on any specific Trump statement but that she made her comments as a “general word of caution.”
“To the extent your client wants to make statements on the internet, that has to yield to witness security,” she noted earlier in the hearing.
Lauro repeatedly emphasized that Trump would “scrupulously abide by his conditions of release.”
Reuters (“FTX’s Bankman-Fried headed for jail over alleged witness tampering“):
Sam Bankman-Fried is heading to jail after a U.S judge on Friday revoked his bail, finding probable cause that the indicted founder of the bankrupt FTX cryptocurrency exchange tampered with witnesses at least twice.
U.S. District Judge Lewis Kaplan’s decision to jail the 31-year-old former billionaire ahead of his Oct. 2 fraud trial over FTX’s November 2022 collapse came after prosecutors said he had “crossed a line” by sharing private writings by former romantic partner Caroline Ellison with a New York Times reporter.
“He has already – without violating any other bail condition save that he not commit another crime – gone up to the line over and over again,” Kaplan, who is known for his no-nonsense demeanor in the courtroom, said in a hearing in Manhattan federal court.
The judge rejected a defense request to delay Bankman-Fried’s detention pending appeal of the decision.
The decision could complicate Bankman-Fried’s efforts to prepare for trial. He faces charges of having stolen billions of dollars in FTX customer funds to plug losses at his Alameda Research hedge fund, where Ellison was chief executive officer.
She has pleaded guilty and is expected to testify against him at his Oct. 2 trial.
[…]
Prosecutors argued that Bankman-Fried shared the writings to harass Ellison and to dissuade others from testifying by creating the perception that he could share unflattering information about them with the press.
His lawyer Mark Cohen argued Bankman-Fried wanted to defend his reputation and that he had a right under the U.S. Constitution’s First Amendment to speak to the press.
“The defendant fairly believed he could make those comments,” Cohen said.
Kaplan was not convinced, noting that Bankman-Fried had previously sought to tamper with a witness by asking the general counsel of an FTX U.S. affiliate to “vet things with each other.”
Kaplan said Bankman-Fried’s decision to show Ellison’s writings to the Times reporter during an in-person meeting, rather than in an electronic message that could have been monitored by prosecutors, suggested malign intent.
“It was a way, in his view, of doing this in a manner in which he was least likely to be caught. He was covering his tracks,” Kaplan said.
From my lay standpoint, Trump’s and Bankman-Fried’s actions strike me as comparable. Yet one was immediately ordered to spend the next several months in jail awaiting trial while the other was simply admonished not to do it again or else . . . the trial date might get moved up?
On the surface, at least, it looks like Trump is getting special treatment because he’s the former President and that the judge is bending over backwards not to confirm the charges of bias.
It’s possible that the nuances of the two cases make one action more detrimental to the prosecution’s case. Or that there’s some finer point of witness tampering law that I’m not understanding. Or just that one judge is simply harsher than the other.
Regardless, Chutkan is in a no-win situation. As I’ve said from the outset of these various proceedings against Trump, they’re inherently political simply because of who Trump is. Of course a judge appointed by Obama is going to be considered biased against him, just as one he had appointed would be considered biased in his favor.
As both a political and practical matter, Chutkan likely can’t order Trump hauled off to jail. And ordering a Presidential candidate—indeed, one who’s far and away the frontrunner for the opposition party—to refrain from making public statements for the next six months would likely not survive on appeal. But there have to be sanctions for witness intimidation.
It’s hard to support the idea that judge Chutkan is biased towards leniency.
In practice, judges usually either accept the prosecution sentencing recommendations or deviate downwards = at least one of the judges dealing with Jan 6 rioters is notorious for downward deviations.
In the Jan 6 cases judge Chutkan has handled, she accepted the recommendation roughly half the time, deviated upwards the other half. If I recall correctly, she is the only one who has been deviating upwards.
So it seems she is about as tough a judge as Trump could have caught.
@charontwo: I think that’s right. But I do think she’s bending over backward not to give Trump ammunition and is somewhat hamstrung by the unique situation of the defendant being in the midst of a Presidential campaign.
As a subscriber to Popehats podcast Serious Trouble, which has been following the SBF prosecution for a while, I can say that there is a difference. Bankman-Fried’s been caught violating his conditions multiple times and this was a case of the straw that broke the camel’s back after numerous warnings.
Also Trump’s unique position really complicates this. Further complicating things is that Pence is a candidate, albeit a long shot one, for the Republican nomination as well. For example, were he to attend the Debate, would Trump be able to interact or be on the same stage as Pence? Or if Pence, or Biden for that matter, speaks about Trump’s situation in a Political sense, shouldn’t Trump be able to respond to those claims?
As always with the former President we are off the map.
I think one key difference here is that the SBF proceedings have been going on for some time, and the defendant has been violating the rules — or at least dancing on the lines — for several months, and finally the judge had to put a foot down. Trump is just at the very beginning of the process and, I suspect, will get several warnings — as did SBF — before the hammer comes down on him.
@wr:
Yes, this is relevant but it also shows that Trump is getting a treatment that is consistent with his situation.
@James Joyner:
Honestly though, why should Trump get any deference outside of the accommodations that a SS detail would impose? I mean he is the one who thought it would be a great idea to run for president while under indictment. And he is only getting the deference because of “how it looks” given his status as a former president. I think the judge should be preparing a place, maybe on a military base or some other facility that can accommodate both Trump and his security detail because there is zero chance that the former president will shut his mouth. And while we know that every time he speaks, he digs himself into a deeper hole, I think if he knew that they have solved the problem of how to confine him he just might pull back a bit and if he doesn’t there is no delay in muzzling his big fat mouth.
We should be looking at this as Trump is no different than any other asshole running for president. Do you think the candidate for the Libertarian party would get the same treatment despite the fact that they find themselves as the nominee for that party? We all know the answer is no.
We are so far in this country from anything that resembles “equal treatment under the law” that it’s becoming comical. And this isn’t just about Trump, any person of note is treated differently. Meanwhile, if you are poor or just not very well known you can get thrown into a hole to rot and no one gives a rat’s ass. Honestly, did they really have to lock up Reality Winner while waiting for trial? They could have gotten the same result by just taking her passport but someone clearly wanted to make a point.
I’ve been playing this out in my head and I think some version of the following is likely. First, it’s safe to assume that Trump, having very little self control, will continue to threaten and intimidate, and also to reveal stuff he’s not supposed to. At that point, I assume the Judge will insist on warning him in person and not via his lawyer, which means that Trump has to show up in court and be lectured to by a black woman. What happens then?
First, is the possibility that he sits there and takes it and says “Yes” and “No” appropriately when asked questions. This isn’t as far fetched as it sounds. Twenty years ago this would have been his normal behavior when in legal trouble. But twenty years ago it took place in relative anonymity. Today, literally the whole world would be watching him. But let’s assume that he does manage to keep his mouth shut, what happens then? I think it immediately diminishes him in the eyes of MAGA. If he didn’t do anything, i.e. kept to the judge’s instructions, they would start to quietly abandon him. And he knows that. So I think it is quite likely that he will end up deliberately and publicly violating the rules the judge has laid out.
That’s when we reach a real turning point for the nation. Will the judge revoke his bail and send him to jail? It will be a crazy moment, but an important one for the country and the rule of law. What if she lets him get away with it. Also an important moment but in a very negative way. It will correctly being seen as the justice system bowing to a tyrant.
There’s also the possibility that Trump doesn’t meekly take the in-person warnings but lashes out at the judge in her chambers. That would just immediately bring us to the moment described above.
@Rick DeMent: Affirmative action for the rich and well-connected, who just happen to clustered around the same demographics. It is as it has been always.
But God forbid a black kid get a leg up in college admissions to a handful of elite schools, a poor migrant mother get Medicaid, or a struggling recent grad get a one-time $10k loan writeoff. “It isn’t fair,” whines the bootlicking bourgeoisie.
We’ve been born and reborn as anti-monarchists, then anti-slavery warriors, and then civil rights champions. Yet here we are, a bunch of shackled sellouts to the landed gentry and their orange brat.
Lock him up already!
This shows how stupid Liz Holmes is. She should have run for president rather than prepare a defense for trial.
The great difference between Trump and any other criminal defendant, rich or poor, including SBF, is that Trump has a huge band of crazed, violent fans who might erupt in rage if he’s imprisoned prior to trial. The authorities probably fear, with considerable justification, another insurrection.
@CSK:
The DOJ has a formal policy that the possibility of a biased judge or biased jury does not influence decisions to charge or choice of venue (i.e., no forum shopping). The reasoning is that giving in to bias concedes victory to the biased.
You could apply similar reasoning to the above to giving in to the mob.
https://twitter.com/Brandi_Buchman/status/1689973134441496576
https://nitter.net/Brandi_Buchman/status/1689973134441496576
Above is a lengthy thread recording the protective order hearing yesterday, the discussion. Judge Chutkan seems pretty no-nonsense, not someone to be influenced by some citizen loudmouths venting.
(The judge is in charge, not “the authorities”).
(So what if they “erupt in rage?” Then what – what do they do with that rage)?
I read somewhere, have not been able to find it though, that TFG Truth Social account has been darj since the protective order, so TFG impressed,
..
Snort… GUFFAW!
He chose to, not just knowing but because he was about to indicted. Tuff shit for him if his campaign is affected negatively. A normal person would have decided to concentrate on their legal issues, not muddy things up with a campaign.
Yeah, I know. In his narcissistic brain the campaign will absolve him of his criminal charges, but he’s an idiot, smoking his own supply.
@charontwo:
Sure, but the mob generally steers clear of antagonizing/threatening people in law enforcement. The MAGAs, on the other hand, want to kill anybody who touches a single one of the sparse, ill-dyed hairs on Trump’s head.
@charontwo:
I have no doubt the judge will be circumspect, but I think that would hold only up to a point.
It seems to me that this admonishment “the greater the urgency will be that we proceed to trial quickly” from Judge Chutkan indicates her keen understanding of the dynamics at play here.
Undoubtedly, Trump is going to push the boundaries of what he’s allowed to say about this trial in public and he is almost certainly going to push too far repeatedly – the guy is posting and speaking multiple times every day as a person with zero ability to control what comes out of his mouth. Trump certainly doesn’t want to spend any time in jail, but incarceration would play into to his political persecution storyline in very straightforward ways. BS ways, of course, but easy to sell to the Trumpists and even establishment Republicans as unfair to him as a candidate.
But, Trump doesn’t want this to go to trial quickly. He has a legitimate interest in giving his legal team time to prepare and a political interest in as much delay as possible. Yet “a speedy trial is bad,” while less of a BS argument, is harder to present to his rubes as being unfair to him, because most Americans would see quick trial as good for an “innocent” defendant wanting to clear their name as soon as possible.’
Well played, Judge Chutkan.
@charontwo: A thing that came up a couple times in The West Wing was that the President would do what he felt he needed to do and the Secret Service would find ways to accommodate. IANAL but it would seem to me that a judge has the authority, even obligation, to send a citizen to jail if he pushes too far. The SS may bitch, but what authority do they have? I imagine Trump’s lawyers and SS would push for house arrest, and maybe that’s OK, with suitable conditions, the first time. But if that doesn’t keep him in line, seems like a real jail has to be on the table. I hope somebody’s making contingency plans.
@gVOR10: There is no way house arrest would work with Trump. Nonetheless, I can see the judge going that route just to show she gave him every chance.
“And ordering a Presidential candidate—indeed, one who’s far and away the frontrunner for the opposition party…”
Opposition relative to whom? The judge? Um… why?
@MarkedMan:
Not in his house.
It would in mine. I offer it for the low low price of US $1,500 per day*. I’ve a small spare bedroom bigger than a cell, with a bed, chair, closet, and TV with cable. It has its own bathroom with toilet, sink, and shower. No WiFi, no phone, no wired internet. It can easily be locked from outside by installing an additional lock, which I’m willing to do at my expense.
It’s right next to the laundry room and the back door. A Secret Service agent can easily keep watch in the laundry room, and one just outside the back door. We have plenty of folding chairs. They are welcome to share our meals, too, if so inclined. We have no bedroom for them, but that’s ok. They’re on a job, not living at the lockup place. I imagine three 8 hour shifts. We do have one additional parking space they can have free of charge.
* Plus VAT. One year payable in advance, non-refundable even if the prisoner is released after one day.