What Jack Smith Didn’t Say in His Double Jeopardy Response
Jack Smith just submitted his response to Trump’s immunity claims before the DC Circuit.
While most attention will be on the absolute immunity claims, given the disqualification of Trump in Colorado and Maine, I’m more interested in Smith’s response to Trump’s claim that his impeachment acquittal precludes these charges.
That’s because, depending on how this appeal goes, Jack Smith could make the question of Trump’s (dis)qualification much easier by superseding this indictment with an insurrection charge.
Most of the response argues that impeachment and criminal charges are different things. That argument is likely to prevail by itself.
In addition, though, the response repeated a passage, almost verbatim, that appeared in Smith’s response before Chutkan. In it, Smith said that the elements of offense currently charged do not overlap with the elements of offense for an insurrection charge.
Any double-jeopardy claim here would founder in light of these principles. Without support, the defendant asserts that his Senate acquittal and the indictment in this case involve “the same or closely related conduct.” Br.52. Not so. The single article of impeachment alleged a violation of “Incitement of Insurrection,” H.R. Res. 24, 117th Cong. at 2 (Jan. 11, 2021) (capitalization altered), and charged that the defendant had “incit[ed] violence against the Government of the United States,” id. at 3. The most analogous federal statute is 18 U.S.C. § 2383, which prohibits “incit[ing] . . . any rebellion or insurrection against the authority of the United States or the laws thereof.” A violation of Section 2383 would therefore require proof that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof” and that the defendant incited that insurrection. Incitement, in turn, requires proof that the speaker’s words were both directed to “producing imminent lawless action” and “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-28 (1982). None of the offenses charged here—18 U.S.C. § 371, 18 U.S.C. § 1512(c)(2) and (k), and 18 U.S.C. § 241—has as an element any of the required elements for an incitement offense. And the elements of the charged offenses—e.g., conspiring to defeat a federal governmental function through deceit under Section 371, obstruct an “official proceeding” under Section 1512, and deprive persons of rights under Section 241—are nowhere to be found in the elements of a violation of Section 2383 or any other potential incitement offense. The mere fact that some of the conduct on which the impeachment resolution relied is related to conduct alleged in the indictment does not implicate the Double Jeopardy Clause or its principles. See Dixon, 509 U.S. at 696.
This doesn’t mean that Smith will supersede Trump, if this appeal succeeds. There are a lot of reasons not to do so (including that Trump would get to file a motion to dismiss that charge).
That said, Smith might have another reason to do so if SCOTUS significantly narrowed the obstruction charge in the Fischer appeal, because the obstruction charge is how Smith is presenting the evidence that Trump caused the attack on the Capitol.
In my view, this language keeps options open.
The 5 not-so-hyperbolic hypotheticals make a third appearance, verbatim. p42-43
Yes! I’m glad!
Although it deals with pardon power, so likely won’t appear here, my favorite is “the Vice President could fatally shoot the President, ascend to the Office of the Presidency, and then pardon himself,” because it 1) visually depicts for outside observers and parties, including the defense, the reality of King-like easy-replacement, which is a fear-instiller, for sure, for the x-King; and 2) because it exposes the absurdity of his argument.
Digging in now! Thanks, Marcy, for making this all available to us!
And wishing a Happy New Year to you — the New Year you allow us all to envision through your honest, thoughtful reporting on the craziness around us!
Only honesty can drive change. You clearly want us to be a better democracy, and better nation. Thanks again for your work!
“… The implications of the defendant’s broad immunity theory are sobering. …” — indeed!
“sobering” isn’t the word I would have chosen. I don’t drink alcohol at all, but that’s one of several Trump legal theories that makes me question my choices. And I imagine that most people who have played drinking games with Trump legal documents have already died of cirrhosis of the liver.
An amicus brief regarding lack of jurisdiction to hear an interlocutory appeal on the issue of immunity has been filed in the DC Court of Appeals. The article states, ‘Supreme Court precedent prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on “an explicit statutory or constitutional guarantee that trial will not occur.. Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.
https://www.americanoversight.org/american-oversight-files-amicus-brief-in-trump-election-interference-case
Here’s a link to their filing as posted to Doc Cloud.
https://www.documentcloud.org/documents/24245907-american-oversight-amicus-brief-in-support-of-dismissal-for-lack-of-jurisdiction-us-v-donald-trump
The precedent cited is Midland Asphalt Corp v. United States 489 US 794, 801 (1989) with Scalia writing the judgment for a unanimous court.
Gorsuch also gets a call out from United States v. Wampler 624 F.3d 1330, 1336 (10th Cir. 2010):
Apologies for posting this here before reading further as this amicus brief is well discussed below.
I probably missed it: is it known who on the SC’s team of 9 is presenting the oral arguments before the CA on the 9th?
I assume Dreeben?
Probably so.
But I’m picturing a staff meeting, where Smith gathers his group of nine, and assigns each one a SCOTUS justice to study within an inch of the justice’s legal life. “Assuming Trump appeals a loss at the CA, when we prepare our reply to their appeal, I want each one of you to understand your assigned justice so well that you can help craft the reply to either appeal to that justice or short-circuit their likely objections.”
That’s what Dreeben brings as surely as he breathes.
Absolutely
“Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Nine for Mortal Men, doomed to die,
One for the Dark Lord on his dark throne
In the Land of Mordor (Mar a Lago?) where the Shadows lie.”
So the 9 Nazgûl were countered by the 9 Walkers – the Fellowship as it were; I like to think heading into a New Year that Smith’s group of 9 will do as well as Tolkien’s did.
As I do not make resolutions I turn to a hope for justice and that the pollution of less than nonpartisan Judges appointed by the Orange Florida Man does not prevail.
Wishing all here a great, happy and prosperous New Year.
The docket sheet indicates that James I. Pearce will argue for the United States. https://www.courtlistener.com/docket/68073028/united-states-v-donald-trump/
Dec 29, 2023 FORM 72 submitted by arguing attorney, James I. Pearce, on behalf of Appellee USA.
(For Internal Use Only: Form is restricted to protect counsel’s personal contact information)
[23-3228] (Pearce, James) [Entered: 12/29/2023 04:17 PM]
I am curious. Why do my comments — even the most anodyne — consistently get deleted during moderation?
There is nothing remotely inappropriate or controversial about my responding to Mr. Snyder’s inquiry that, according to the docket sheet, James I. Pearce will argue on behalf of Appellee USA. https://www.courtlistener.com/docket/68073028/united-states-v-donald-trump/
It seems more likely that the speed of moderation you want does not always match the moderator’s resources, priorities, and schedule.
Take a breather. This is the best moderated comments section on the Internet. And it needn’t cost you a bent dime, unless you find and use the Support button on the upper right.
(kaph)
No, this 35 year veteran of the internet battles heartily disagrees.
I’ve donated twice and that apparently means nothing. Not even an ack. But a pulled comment or response, and/or a “moderator’s” insults, for who-knows-what reason shouldn’t surprise.
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FWIW
American Oversight filed an amicus brief saying the Appeals Court lacks jurisdiction to hear Trump’s appeal. They argue that Supreme Court precedent (Midland Asphalt 1989) “…prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on ‘an explicit statutory or constitutional guarantee that trial will not occur’…”
“Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.”
https://www.americanoversight.org/american-oversight-files-amicus-brief-in-trump-election-interference-case
The American Oversight amicus brief makes a strong point that the Midland Asphalt case undercuts Trump’s right to an interlocutory appeal of Chutkan’s order denying Trump’s immunity claim. The D.C. Circuit Court is under no obligation to accept amicus briefs but did so here. The appellate panel may well have thought this amicus was on to something useful.
Indeed, it is curious that the Special Counsel’s office did not raise the jurisdictional issue, since it is such a simple, straightforward way to terminate the appeal and get the case back to pre-trial proceedings in the district court. Surely, the Special Counsel was aware of Midland Asphalt and its progeny. My guess is that the Special Counsel felt that winning the appeal on the Midland Asphalt theory would be like hitting a double when, they believed, the approach they actually took would give them a decent chance to hit a home run. In other words, if the Court of Appeal and the Supreme Court are willing to say—right now—that Trump’s immunity claim is a dead letter on its merits (which it ought to be) then such a ruling would remove the immunity issue not just now but in any appeal Trump takes post-conviction. Permanently.removing that issue, in turn, would give the Special Counsel tremendous additional leverage going forward. Part of that leverage would come from Trump’s unavoidable realization that the Supreme Court is not anxious to help him.
If, instead, the appeal is merely dismissed under Midland Asphalt as ineligible for interlocutory resolution, then the case heads forward again in the trial court but leaves ahead more work and a possible long run delay in removing Trump, a long last, from the playing field.
I presume Smith considered it, but rejected it, believing the facts and law are overwhelmingly favorable to him.
But ignoring it doesn’t seem to be the way Smith would deal with an awkward precedent. Plus, it leaves a Smith victory open to attack by the Supremes, should Trump borrow the argument on appeal. Or the Court, of its own accord, might use it to void a lower court decision for lack of jurisdiction.
If he doesn’t like it, he’ll have to distinguish it, to avoid that result.
Smith and his team are masterful writers. From pdf p 23, with emphasis added.
Trump claiming that such a plot falls within his official duties is laughable, and one would hope the Appeals Court and SCOTUS would be the ones leading the laughter.
Love to be in the room where that writing happens.
Maybe it looked like this:
https://en.wikipedia.org/wiki/Reply_of_the_Zaporozhian_Cossacks
If you search Google Images for “jack smith special counsel” you won’t find many images of Smith smiling. I found a copy of his high school senior year photo and he’s just barely curled his lips. I imagine document drafting sessions being quite serious.
But these two putzes…
Tons of photos of these two smiling, laughing hacks scheming together and apart with the rest of their own version of 2 Live Crew, as nasty as they wanna be.
Sharing each other’s flatulence since the mid-1970s!
I love how the government points out that “the defendant cannot reframe the allegations into a version that more conveniently supports his legal arguments.” “In his view, for example, the indictment encompasses mere “communications with state officials,” BR.44, when the actual allegations detail “knowingly false claims of election fraud aimed at interfering with the ascertainment of and voting by electors made by the defendant.” Sure, you didn’t really shoot someone on Fifth Avenue; you simply moved your index finger closer to your thumb while holding a firearm in your hand.
I’ll bet when Alina Habba reads Smith’s reply, she feels like an actress reading reviews of a play that bombed.
I don’t think she’s part of the team for this case or for the appeal:
Todd Blanche (lead)
Emil Bove (works for Blanche’s firm)
Filzah I. Pavalon (works with Lauro & Singer’s firm)
Gregory Michael Singer (partner with Lauro)
John F. Lauro
My bad. These arguments are amazingly stupid, but the RWNJ are sure to recite them and pretend to believe them. They are doubling down on the “we aren’t a democracy, we’re a constitutional republic” crap, so expect to see these become memes.
The reason they keep repeating that “we aren’t a democracy” line is because that’s the way the Right Wing Media Silo has decided to defend minority rule.
They claim this is necessary to defend against “the Tyranny of the Majority”, but I’ve not yet seen anyone explain what “tyranny” they expect from majority rule, nor have I seen an explanation for which “Tyranny of the Minority” is better on balance than the feared result of one-person-one-vote.
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Plus (all from James Otis Law Group):
Dean John Sauer,
Michael E. Talent,
William Scharf.
Todd Blanche himself is not named as representing Defendant-Appellant here, see https://www.courtlistener.com/docket/68073028/parties/united-states-v-donald-trump/ .
Blanche is on the Florida defense team (not DC) with Chris Kise, if I recall correctly.
Blanche is on both FL and DC.
From the ABC live updates of Trump’s second impeachment trial, as they got statements of why senators voted the way they did:
I wonder if there is someone working behind the scenes with members of Congress, trying to organize an amicus brief for the inevitable appeal to SCOTUS with sentiments like McConnell’s. “The undersigned are members of Congress from both parties, and include both members who voted to impeach and convict as well as those who voted against impeachment and conviction. Despite such differences, we are united in our conviction that a former president does not possess the unlimited immunity asserted by the defendant. . .”
I can see the tactic of just kicking that can further down the road.
McConnell said that the Senate didn’t have to deal with it now, it could be handled by some system of justice.
Totally appropriate in these times for the Supremes to take that line and say that they don’t have to deal with this – it’s a job for God when/if it gets there.
McConnell was saying “Impeachment of someone in office is one thing, because you can remove someone who is an immediate danger, but someone out of office should be dealt with through the usual procedures of the judicial system.” He wasn’t kicking the can down the road.
Trump was already out of office. Impeachment 2 was not going to take him out of office, but only prohibit him from running again.
I don’t agree with McConnell, but I can understand what he was saying.
I remember on the night of January 6th/morning of January 7, 2021, McConnell saying he would not call the Senate back into session so that Trump could be impeached before January 25th. Hence, I find McConnell disingenuous in his later statements that impeachment no longer applied to Trump as he was out of office because McConnell would not have let an impeachment he might consider timely proceed.
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Agree. McConnell very much kicked the can down the road, in that he delayed any impeachment trial until after Trump left office. Of course, he did this to protect R Senators from a very terrible vote, substituting a vote that was merely difficult.
You are more optimistic about some GOP members of Congress stepping forward to “Do The Right Thing” than I am.
If they did as you suggested and Trump was still able to get back to the White House, he wouldn’t be very nice to them.
Since GOP leadership has mostly avoided going hard against Trump, I would expect them to continue doing the same thing.
The indictment is solid, meaning that if proven beyond a reasonable doubt, there will be a conviction. From the get-go, Tump’s arguments have been directed against things he has not been charged with. That’s why much of the public, led by much of the press, thinks there are really difficult legal issues involved here. There aren’t, except perhaps for the issue raised in the Fischer appeal and that issue does not concern all the counts of the indictment.
SC Smith continues to impress with the perspicacity of his filings and the ability to remain well ahead legally of the defense team du jour. I would not be surprised to see that many of these actions were paralleled in the Hague while he was there.
The contrast between Smith and the dimwitted duo (Durham and Weiss) remains very intuitively obvious to the most casual observer.
Semi-OT: any speculation about whether the Epstein list drop will get its own Special Counsel given who’s rumored to be on it? Normally something that sordid wouldn’t require one but some of the rumored names require some delicacy to handle objectively.
Unlike Durhum and Weiss, Smith has a legitimate case.
Indeed, but the dimwitted duo are playing bad hands poorly as well. It reminded me of my first trial as a juror where the prosecutor tried to insinuate the defendant had an affair as proof of DUI (really, she did: “where was his wife”) when actual evidence was lacking.
We acquitted in under an hour.
I think the following argument is new, has not before appeared in motions from the DOJ (correct me if I am wrong) (from page 29 of the pdf)
I find this a precise reminder to congresspersons that in fact he did exactly that, while not in a State of the Union address, but nevertheless. Quoting Blassingame v. Trump is particularly delicious.
Yes, it is a new. That whole section is stronger, making the tie between claimed official actions to Trump’s argument much stronger. And the scenario of killing half of Congress is not that far off where Trump was on January 6.
When you say killing half of Congress, I don’t think most of the thousands of insurrectionists would know the different of the over 500 legislators and their staff that they’d want to kill even if they stood in front of them.
Maybe Trump wanted to go to the Capital because he felt he could identify his enemy legislators to the insurrectionists.
But this argument about incitement made within an official act eg delivering the State of the Union address, being an act not immunised is explicitly rejected in Blassingame see pp 49 – 51 Blassingame https://www.documentcloud.org/documents/24179888-231201-absolute-immunity
That rejection seems to be a set of directions rather than a supportable legal conclusion. It’s a position that would be difficult to maintain in the face of someone like Trump, who is willing to abuse any norm or tradition to shelter his increasingly violent and illegal conduct in order to obtain or remain in office, and to hold off reality, mortality, and liability for that criminal conduct.
It seemed to me to be dicta, since Blassingame was about: the scope of civil immunity doctrine rather than what basis if any exists for criminal immunity,
and that the actual conduct at issue in the case was clearly outside the scope of civil immunity, because the Trump claims that various aspects of the conduct are within a collection of official acts were pretexual contrivances.
It seems to me clear that SC are rightly prepared to argue that intentional conduct, which might give rise to criminal liability, is not immunised by dint of being masked by a contrived pretext of “official conduct”, but that criminal immunity, if it exists, arises in contexts of the exercise of particular authority re eg Foreign Relations, Commander-in-Chief authority, and the immunity for the conduct in question is a necessary incident to a proper and full exercise of such authority on behalf of the Nation and the constitution.
But this detail in the Blassingame discussion shows conceptual and practical difficulties in specifying rules for all conceivable circumstances.
In reply to Arteberry, IMHO it’s a major blunder by Jack Smith not to have raised the issue that an interlocutory appeal on the immunity issue is barred on jurisdictional grounds. The delay in resuming action in district court would be very brief if the appeal is denied on this basis. It’s critical that the trial occur before the election. I think the entire Supreme Court could unite behind denying cert if the appellate court ruled there was a lack of jurisdiction. The immunity appeal is so unlikely to prevail on the merits that it’s not a true concern on post-trial appeal.
Or couldn’t the entire Supreme Court sit on their hands and not look at this till the end of this term?
Maine’s secretary of state should declare herself a fetus. Only then will MAGAs stop threatening her life.
If Trump wins his argument of total presidential immunity, there’s nothing to stop Biden from summarily arresting Trump and his close supporters and sending them off to Guantanamo for an indefinite stay with our 9/11 guests.
Funny how Team Trump and MAGA don’t appear to grasp this, that presidential immunity they demand would apply to their opponent as well.
There is a specific brand of fascist fantasists who live in a world that’s part Alex Jones style paranoid conspiracy and part Steve Bannon style dictator porn. They live in a state of almost constant fear that the next Jade Helm will be a “Chicom-directed Deep State takeover” while at the same time believing that Democrats are so feckless that any dictatorial powers granted to a Republican POTUS will only ever be exercised by Republicans on behalf of the [white] People.
I know this because I live in Texas and those folks run the Texas Republican party.
And weirdly, the reality that is fed to these folks reinforces this notion. They “know” what the Dems/Socialists/Commies/Woke want to do but never seem to accomplish. And they see their side being stymied by the “rule of law”, RINOs, and the Deep State. For them, there is no problem with supporting presidential immunity (actually impunity) because it will only help their side.
It’s some sort of cognitive blindness shared by authoritarian personalities. Ex. Biden’s not an authority figure to them, therefore Biden could never avail himself of the privileges they perceive their chosen authority figure to possess.
Logic simply isn’t a thing in their world.
It’s almost like they’re—dare I say it—a cult!
/s
There are some interesting quotes from Parlatore and Cobb in an article in Rolling Stone:
https://www .rollingstone. com/politics/politics-features/trump-plot-to-turn-jan-6-trial-into-maga-freak-show-1234938951
Trump’s reply to Smith, filed yesterday: https://s3.documentcloud.org/documents/24252511/trump-reply-brief-for-oral-args-jan-9-dc-appeals.pdf
It contains the usual question begging, tortured language, and misstatements of law. There’s plenty of snark, too, such as when it mimics Smith’s language, but argues for the opposite conclusions. By design, it’s an exhausting read, which might tempt the overworked to stop checking Trump’s arguments and their support. That would be a mistake: both are bogus.
Trump argues, for example, that the language of Art. I, Sec. 3, clause seven is “plain and unambiguous.” It is, but Trump then abuses it:
That clause is a single sentence. Its final independent clause acknowledges that the legislative branch-imposed punishments of removal and disqualification from office may not be the sole consequences for the conduct that led to impeachment and conviction. The executive branch – whose powers do not arise from Art. I – may independently impose further sanctions, by way of “indictment, trial, judgment and punishment, according to law.”
Trump turns that acknowledgement on its head by declaring that the executive branch cannot impose the consequences of “indictment, trial, judgment and punishment, according to law” on an officer of the United States, who has not been impeached, convicted, and removed from office. Given the rarity of impeachment and conviction, that’s a de facto claim of immunity for criminal conduct. Not even this S.Ct. would accept that logic on such flimsy grounds.
Good points all.
And not that the interpretation of the plain words of Art I s 3 cl 7 requires reinforcement, but Art II s4 does reinforce it :
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”
It circumscribes who may be removed from office, how they are removed, and what they may be removed for.
The provisions in Art I contain the procedures for Impeachment and removal from office of officers, and the jurisdiction of Congress.
Treason, bribery and other High Crimes and Misdemeanours, are not only constitutional crimes justifying removal from public office, but also undoubtedly contemplate conduct punishable at Law as criminal offences contrary to either Statute or Common Law or both.
The Impeachment Judgment Clause makes plain that conviction on Impeachment is concerned only with removal from office, and not with amenability of officers to the processes of Law for the conduct at issue.
In contrast to Impeachment in Parliament, where Parliament sitting as a court could impose criminal penalties
At the time of the ratification of the Constitution, autrefois acquit and autrefois convict were principles of Common Law not yet given Constitutional status.
Thus the effect of the two provisions is to clearly establish that under the constitution Impeachment was only a matter for removal from office by Congress, not the imposition of criminal penalties, and that its proceedings neither ousted nor precluded the jurisdiction of the Courts for the same conduct.
Trump’s argument would not only create immunity for officers acquitted following impeachment proceedings, but also those who faced credible accusations, but resigned from office before being impeached and convicted.
Good points. Really, “that’s crazy talk” describes Trump’s response objectively. “Let’s take The Constitution, take a snip off here, a snip off there, and … voilà! … isn’t she just perfect?”