Jack Smith’s Way Forward
I’m going to write a long post on how John Roberts made elections subservient to the President.
But first, I want to lay out a way forward for Jack Smith. I’ll return to a way forward for Biden.
First: SCOTUS has remanded this case to Judge Chutkan to determine which of the charges can be sustained as unofficial acts. As I’ll lay out, I think they’ve put their thumb on the scale that none of them can be. But by all means, she is now required to spend the next four months figuring that out.
So if I’m Jack Smith, I ask her to block out her time for the foreseeable future to do just that.
Because the President cannot be prosecuted for anything considered a core Presidential act, like bribing Roger Stone with pardons, Jack Smith should issue a report of what Trump did with his core official acts.
Nothing in this opinion prohibits Jack Smith from prosecuting everyone else (save Trump’s closest aides and Jeffrey Clark). So Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.
Time for Roger Stone to start sweating in the barrel? I like the sound of that.
….great point. As well as the 5th pleading Flynn.
I look forward to reading this. What’s clear is that Chutkan’s ruling will be reviewed by SCOTUS so a trial, if it ever happens, will be a long way off. I’ve read Roberts’ opinion and am stuck on this one question: the pardon power is a core constitutional power of POTUS so a POTUS taking a bribe in exchange for one (which Trump allegedly did) is immune from criminal prosecution?
….based on their ruling any action taken by POTUS is inadmissable in court
If I read Roberts footnote correctly.
But Article II, Section 4 of the Constitution says “the President…shall be removed from office if convicted in an impeachment trial of “Treason, Bribery…”
Does this imply that bribery can not be an “official act” because it is grounds for impeachment?
Excellent question.
Once again we are being forced to look for clarity when it isn’t there. Does “cases of bribery” mean accepting a bribe? Probably so; I expect the Founders were more interested in it that way round, rather that the way, say, Stormy Daniels was bribed to shut up.
Or does it mean that bribery is no longer in Article II Section 4?
Are unofficial acts the ones that he does after he punches out on the time clock or his Oath?
What an embarrassment to the World .
Does this mean Biden could have Trump and the six conservative supreme court justices arrested and shipped off to git mo
My thoughts are along those lines as well. Get the DOJ to investigate the SCOTUS judges for bribery and perjury, for instance. Nothing stopping him under “official acts.” Oops
Indeed, but I think Chutkan should get her hearing in first. Then, drop the hammer.
Good idea.
Does the decision make the Georgia case disappear? A president can be bribed for a pardon (🤦🏻♂️) but does that mean the briber gets off too? Questions that I thought were silly and trivial but now, who knows.
No. Presidential pardon power only extends to federal crimes, not state charges.
ADDER: please avoid using emojis in comments here as they are not searchable. Emoticons are acceptable.
What effect, if any, would this have on Clark’s disciplinary/disbarment proceedings in DC? IMO, one of the worst features of this horrendous decision is that weasel skating.
None. That is purely a state law question.
This decision seems to pave the way to more expansive Executive Orders than ever. Any suggestions as to what Biden could do with this?
All the stuff the 5th Circuit keeps claiming he can’t do.
Even if Biden manages to sustain the miraculous post-debate return of zip (yes this is sarcastic, because Biden really let America down and my feelings are still hurt), he won’t do anything in today’s America that he wouldn’t in yesterday’s, and people should stop fantasizing that he will. Doing so is both agonizing and unproductive.
Since the backwards reasoning of the SCOTUS majority make this pre-trial factual analysis a substitute for true jury fact-finding at trial, I suppose that Judge Chutkan will have to undertake that very effort. Gather a pre-trial factual record, including testimony and cross-examination, to flesh out her analysis. As bad as this ruling is, in this case Trump colluded with tons of private actors who had no role in the administration and presumably their testimony can be compelled. There’s also copious contemporary reporting about the public acts Trump committed during this time period. Gathering all of that evidence and reaching a determination of the boundaries by the election would keep his conduct in the news every day until then.
Of course a pre-trial, judge-delivered analysis does not hold the public legitimacy of 12 impartial jurors considering the evidence and giving their view on the facts, but it’s something.
If there’s fact-finding required, what about an advisory jury? I know that they are permissible in civil trials (I faced one of them once), but don’t know about other judicial contexts.
Is that the same as an evidentiary hearing? That would allow all his bad acts to come out in a objective way neither side can refute.
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Most likely they will overrule any case vs Trump. So why not file as many lawsuits as possible so as to break him financially. Can the stolen documents case be refiled in DC?
Smith/DOJ filed in Florida for the various issues – violations that Trump did by not giving back the Documents after January 2021 and was at MAL. There is a documented trail of Trump’s and his legal team’s interactions with the National Archives in 2021 and then National Archives and DOJ/FBI in the first half of 2022. So there is clarity on who said and did what which makes it a cleaner case for the Prosecution to get a Win.
When Trump was in the White House (January 2017 – first part of January 2021) there is quite a bit of Fog on who packed the Documents and transported them to MAL. The Fog of who did what in regards to the Documents during those four years makes it much more difficult for Smith to have a winning case in Court compared to the case in Florida about Trump’s efforts to not give the documents back in 2021 and 2022 when he was at MAL.
I know that it’s a “cleaner case for the Prosecution to get a Win.”
But every case is going to SCOTUS no matter what, so in my view it’s no longer what’s “cleaner”. It’s how to financially clean him out with legal bills by indicting him everywhere.
I would expect Trump to file briefs prohibiting Smith from issuing any report, with the object of delaying until Trump gains office and can find the next Bill Barr, or to delay until it’s practically moot.
Biden can ask for the report and release it himself. That protects Smith. Biden, of course, is immune because that report is from the AG and he controls the AG so it’s an official act.
Now that sounds like a plan!
If Obama knew how much power he actually had. Back in 2016, he would promptly confirm Merrick Garland as the justice and be done with it. He was doing his Presidential core duty. The Congress didn’t do its’ job in that spot, so nothing could stop the President to do his.
Nor should he.
Well, what a difference few years makes.
Let’s not be silly. A president’s official act is to nominate a Supreme Court Justice. His power does not extend to confirming his appointment. That is the exclusive provenance of the Senate.
Can we be sillier than they are?
Racing to the bottom is not much of a standard for governance.
re-earlofhuntingdon July 1, 2024 at 3:00 pm.
As I see it we’re at the bottom.
How much lower do you think can we get?
They even said in another case that bribery of an official is ok.
OT I can’t wait to see trial of Norcross in NJ. Will it get to Christie? great podcast 1st episodes https://www.wnycstudios.org/podcasts/dead-end/episodesandarticles/2 and followed by https://www.wnycstudios.org/podcasts/dead-end
Acting A.G. Whittaker has entered the chat…
No worries about Biden racing to the bottom, but could a Trump like POTUS now craft executive orders that rearrange the way the branches function? I am obviously not a lawyer ;-) (If you think it’s a stupid question just say so)
The crime happened already, pardons for bribes. So how is it possible the law is now redefined to mean something else? Cannot take bribes. This is pretty much in Constitution.
Pretty much works in blog post comments, not constitutional analysis.
So for Biden it is now open season on Trumps?
Your question is abhorrent.
As long as forces fighting criminal acts do not engage in criminal acts we have a better than even chance to prevail.
The corruption is in plain sight. The money is on the balance sheets. Pro Publication and Sheldon Whitehouse are on the case while Durban dawdles.
Jamie Raskin and Jamie Plaskett both great states-people and speakers. The stars must come out now especially bright and shine their lights on the obvious corruption rotting our democratic system via bribes and dark money.
Just spitballing: In every re-Trump classified docs case, the defendant has been taken into custody for as long as it takes to find out what use was made of the records, etc. This didn’t happen here because it’s the Donald. Now that the President is immune from any legal consequence for an official act, Biden can formally instruct the DOJ to arrest Trump in the interests of national security and keep him locked up until the FBI is satisfied that they have exhausted his knowledge as to who he shared classified info with, where he is keeping other documents, etc. Why the hell not?
Before Trump, persons improperly in possession of classified docs were routinely held in custody while the FBI wrung out all relevant information about what was done with the docs, what other docs may exist, etc. Of course this didn’t happen here because it’s the Donald. Now that the president is immunized from all “official acts” regardless of motive, maybe Biden should tell the FBI to lock ’em up until he spills whatever he knows. Should take a while.
“…Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.”
Thank you for this, I hope Smith listens to you. I’ve always been willing to trade a Trump prosecution for that of his enablers. He is too stupid to have been able to do any of the steal attempt on his own, and a Trump-only prosecution is hardly a deterrent for those contemplating enabling future steals.
Under the unitary executive principle, wouldn’t Executive Branch officials acting on the orders of the President have the same level of immunity the President’s act enjoys?
Ut oh, I’m laughing.
So, Trump could have “officially” shot someone to death on 5th Avenue and it would be just dandy.
This is INSANE.
A question if anybody’s got some input: I believe part of this ruling exempts all official correspondence etc from being used as evidence in a court of law. With that being the case, is it possible for the prosecution (Jack Smith in this case) to lay it out in public for the people?
This is what I would like to see done.
I read this can be done in an evidentiary hearing. That would allow all his bad acts to come out in a objective way neither side can refute.
So, a sitting president could visit the Supreme Court and “officially” create openings there?
That is insane.
Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence
The Supreme Court’s immunity decision directed the trial court to hold hearings on what portions of the indictment can survive — a possible chance for prosecutors to set out their case in public before Election Day. https://www.nytimes.com/2024/07/01/us/politics/supreme-court-immunity-trump-jan-6.html Alan Feuer July 1, 2024, 4:09 p.m. ET