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Special Counsel Jack Smith in Washington, D.C., has reopened the prosecution of Donald Trump as he sought to overturn his 2020 election loss. Smith, after months of waiting for the Supreme Court to rule on President Trump’s presidential immunity doctrine and then weeks grappling with the fallout of the shocking ruling that gave the former president broad protection from criminal prosecution for “official acts.” His first act was to return to the grand courtroom. A replacement indictment will be presented to the jury at the end of August. The new charges removed all references to Mr. Trump’s interactions with Justice Department officials, but the Supreme Court ruled that these acts fell within the president’s core immunity and that Mr. Trump could not be indicted on those charges. I made it clear that it means I can’t.
Judge Tanya Chutkan scheduled a press conference for September 26, in which Mr. Smith announced that any of the charges in the superseding indictment or the evidence he wanted to use to prove them would be prohibited under the Supreme Court’s new rules. submitted an opening brief on the question of whether the presidential privilege. Mr Smith maintained that none of this was out of bounds. When the brief was unsealed a week later, Trump took to social media to accuse the special counsel of wrongdoing, claiming Smith had strategically timed the brief to sway voters in the lead-up to the election. . Mr. Trump has called this “election interference” and has opposed Judge Chutkan’s recent decision to unseal the appendix that Mr. Smith attached to his brief, and is likely to continue doing so. .
However, there is no basis for Mr. Trump’s claims. Judge Chutkan heard the parties’ arguments and ordered the briefs to efficiently produce the detailed factual record that the Supreme Court had ordered compiled. President Trump had already filed a motion to dismiss the lawsuit based on executive privilege. This motion was the subject of an appeal to the Supreme Court. On remand, it made sense for Mr. Smith to state his case first and allow Mr. Trump to respond. And President Trump offered no justification for further delays. After the Supreme Court issued the order, Judge Chutkan’s jurisdiction was restored and it was time to get back to work.
Mr. Smith’s position is that most of the charges relate to unofficial conduct. It’s about candidate Trump, not President Trump. The Supreme Court has ruled that personal conduct is not protected by immunity, so if Judge Chutkan agrees, Mr. Smith could move forward with this part of the case.
Mr. Smith took a different stance when it came to the charges involving Vice President Mike Pence. He argued that the exchanges between Trump and Pence were official conduct, but not the kind of core conduct that courts have always found exempt. Rather, he argued, they fall into the category of “other” official acts that are only presumed to be exempt. But this assumption could be reversed if the government shows that the prosecution will not impair the functioning of the presidency. Mr. Smith argued that was not the case in this case. Indeed, not prosecuting a president who attempts to involve the vice president in a conspiracy to maintain power would likely be far more damaging to the presidency than allowing such prosecutions.
Mr. Smith has made it clear that all of the superseding indictments are fair game, so it will be up to Mr. Trump to convince the judge that any of the charges or evidence violates the president’s immunity. It all depends on the team. One might expect Mr. Trump to want to explain why Mr. Smith’s argument is wrong, but that is not the case. Instead, his lawyers asked Judge Chutkan to postpone the response deadline, originally scheduled for October, to November 21. They asked for permission to file an additional response, known as an excess response, on Dec. 19. The party seeking removal has the right to have the final say here. )
Judge Chutkan ultimately granted the Trump campaign some, but not all, of the additional time it had sought, setting a deadline for responses on Nov. 7, immediately after the election. Mr. Smith’s response is scheduled for November 21st. Mr. Trump’s super-response, the final draft of the series of proceedings, is scheduled for December 5th. Unless he determines oral argument or testimony is necessary, the issue will likely be decided by Judge Chutkan at this time.
irregular briefing sequence
Typically, when a defendant files a motion to dismiss, they file an initial brief. That’s common practice, but in this case the government asked to do it first, and Judge Chutkan found there was good reason to allow it. This irregular procedure was the focus of complaints by Mr. Trump and his team. But given that the trial judge has broad discretion to proceed with the case and that President Trump can still file final briefs, bias is unlikely.
The Supreme Court remanded the case to Judge Chutkan with instructions to produce a complete factual record and issue a judgment on immunity. Her decision will be reviewed again by the appellate court before the case proceeds to trial. Judge Chutkan upheld the efficiency of Mr. Trump’s response to Mr. Smith’s claims. If Trump had gone first, he would have simply assumed Smith’s position. And the government has made clear that it prefers to deal with all exemption arguments at once, so that there is just one more round of appeals rather than a piecemeal, never-ending process.
Mr. Trump also complained that the judge allowed Mr. Smith to submit a brief that was significantly longer than normal rules allow. That argument is not convincing. The thorough factual record required by the Supreme Court means that Smith must systematically cover all the charges in the case and the evidence used to prove them. If he hadn’t been more thorough, Trump probably would have vehemently objected to including anything he hadn’t expressed at this stage. The Supreme Court has given Judge Chutkan a mandate, and he and Mr. Smith are doing their best to follow it. The judge gave Mr. Trump 180 pages in his response, the same number of pages he allowed Mr. Smith to use in his brief.
Judges are trying to carry out what the court tells them to do in the most efficient way possible. While it may run counter to President Trump’s desire to delay litigation indefinitely, there is no substantive flaw in the process Judge Chutkan is using. In fact, most defendants would appreciate it if the prosecution laid out the entire case and gave them ample space to respond, as Smith did with Trump in his brief.
Alleged election interference
Instead, President Trump has called for brief election intervention by a special counsel, accusing Smith of trying to influence voters by laying out evidence and charges in the case at the direction of the Supreme Court. This doesn’t make much sense. The American people have watched President Trump’s efforts to interfere with the election results unfold, and President Trump himself has frequently commented on them. Mr. Smith’s brief may have more details, but the basics are well known: Mr. Trump has a big public megaphone, and in response to the allegations against him, he has spoken to the special counsel. has used it without hesitation to accuse others of wrongdoing.
The Justice Department has an internal policy known as the “60-day rule,” which implicitly obligates prosecutors not to take any action that could affect elections. The rules are understood to prevent surprise indictments, search warrants, or public statements just before an election, where they can be avoided. In such a situation, the public may assume the worst and convict a candidate based on speculation and gossip, potentially costing the election before it can be tried in court. Here, Smith filed briefs in response to the court-ordered dates. That alone excludes it from the type of conduct this rule is intended to address: voluntary conduct by prosecutors. But beyond that, the contours of Mr. Trump’s conduct are already well known, and it is highly unlikely that any new details will affect the election. A House committee presented testimony about them on January 6, and President Trump has re-litigated them at rally after rally and in frequent social media posts.
It is absurd to suggest that Mr. Smith interfered with the election by timing his brief to be filed after a long appeal delay over which he had no control. If so, Mr. Smith chose a poor avenue, as his 165-page brief, packed with dense legal arguments, was not intended for mass consumption. In any case, it wasn’t his call. The Supreme Court sent the case back to Judge Chutkan and ordered it to proceed, but there was no indication that it was intended to be postponed before the election. President Trump’s complaints about the process are just another manifestation of his familiar legal strategy of delay.
Judges will now have to decide what charges and evidence are barred by the president’s immunity before proceeding with the case. Ultimately, Trump’s complaints about her methods are meant to advance the case. That’s the real objection. His team does not want the case to proceed. They are frustrated that Trump will have to face justice at the hands of a judge and jury, and are trying to stop him from doing so. But that’s not a legitimate complaint. No defendant has the right to postpone a trial indefinitely simply because he or she wishes to do so. As former Acting Attorney General Sally Yates said in a 2016 speech, “Our job is to pursue justice – to pursue justice in every case.” That doesn’t change even if Donald Trump is the defendant.
