The Superseding Trump Indictment Is about Obstruction as Much as Immunity
In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:
- Removal of everything having to do with Jeffrey Clark
- Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
- Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
- Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
- Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
- New language about the treatment of the electoral certificates
Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.
The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.
1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.
[snip]
5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.
As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.
That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict ofInterest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.
At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.
Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.
The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.
The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.
At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).
Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.
That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.
Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.
92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.[snip]
94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]
This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.
But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.
After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.
Everything italicized below is new.
86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”
[snip]
90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.
91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.
96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”
This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.
A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.
And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.
As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.
- On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
- On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
- On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
- On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65
Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701
[snip]
From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.
Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.
6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.
Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.
[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.
Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”
Here’s one of the most interesting things about yesterday’s superseding indictment.
The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.
Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.
Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).
DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.
They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.
If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.
If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.
Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.
But doing so would clarify the absurdity of such a ruling.
Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.
Has Smith put Trump in the position of having to argue that Trump’s sitting in the dining room (not the Oval or Situation Room), watching TV, and issuing inflammatory tweets while the Capitol was being overrun by a mob was all offical acts done in his capacity as POTUS and not the acts of a candidate?
By the indictment?
I think that’s the goal — to make their inevitable argument more ridiculous.
Mind you, their argument will rely heavily on a Knight Foundation precedent that says ALL Tweets are official.
Does the fact that other people were able to post as DT undermine the argument that all tweets are official? After all, what if a lackey posts a new policy or some other communication that only a president can officially order?
That why Smith fought with Elmo to get the background data on Trump’s Xitter account. It would show which devices were tweeting from where.
Thank you so much Marcy for diving into this so rapidly, and so thoroughly.
Speaking as a lawyer with 35+ years at the bar, I can confidently say that the worst aspect of the SCOTUS presidential immunity decision was the presumption of immunity with the burden it placed on the prosecution to rebut that presumption. The fact is that the POTUS is ALWAYS POTUS, 24/7, whether they are behind the Resolute Desk or sitting in the TV lounge or even soaking in the bathtub (where Churchill reportedly composed some of his most famous speeches). To try to make something of where the President happens to be when making decisions that impact on the governance of the nation, will never succeed. Sorry, but I just don’t see this superseding indictment having a snowball’s chance of hell in overcoming the impossible legal burden that the SCOTUS has placed on the prosecution in trying to hold a criminal President accountable for their crimes.
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Right, and while surfing porn or buying and using nose candy or planning sedition he’s the president.
Go read United States v. Nixon (1974) because apparently you haven’t read it in a while.
Right of course Rayne, because this SCOTUS has distinguished itself above all by its respect for stare decisis.
Because there’s zero chance at all one of these three — Roberts, Kavanaugh, Barrett — might find a limit:
source: https://www.nbcnews.com/politics/supreme-court/cemented-conservative-supreme-court-cautious-justice-barrett-sometimes-rcna159327
*eye roll*
Following in from Rayne.
Notwithstanding that SCOTUS have drawn lines of absolute immunity in places which defy reason,
and have created strong presumptions in favor of the Presidency where they recognise a boundary exists between official and unofficial conduct (and added an opaque standard- “not posing dangers of intrusion on Executive branch authority and functions”)
Nevertheless, a boundary between official and unofficial conduct is said to exist, as a matter of constitutional law.
FWIW I think the Special Counsel has made a decent fist of negotiating the thicket.
They have skilfully exploited the fissures within the incoherent passage in the decision concerning the VP – and his specific constitutionally mandated legislative role, which does not have any political tie-breaking power but is a ceremonial duty.
And then worked outward from there, as a matter of coherent principle to identify public statements which impinge on the proper exercise of that public, constitutional duty which pertains to a separate Co-equal branch of government.
Thus as a matter of separation of powers they have identified evidence which rebuts the presumption that the speech acts in question are official acts, because not only are these speech acts committed in a private capacity as candidate, but also impinge on another branch’s prerogatives, and the characterisation of these acts as private cannot be said to create intrusion of executive branch authority and functions.
Indeed, arguably: it is an undue intrusion upon the constitutional continuity of the office of President, and the seamless transmission of executive branch authority and functions, to hamper efforts to call to account unconstitutional and unlawful efforts to disrupt the transfer of power from one President to the next.
Smith to IDJT in the dock (as if):
“So, Mr ex-President, you spent an awful lot of time and social-media space hounding, cajoling and otherwise trying to browbeat Mr Pence into doing your EC (extra-curricular?) bidding…but why didn’t you just order him to deny certification for those swing-state Electors? He worked for you, right? Oh, hold on…he wasn’t working for you in that capacity, was he? That’s why he could get away with ignoring your direction and intense pressure, doing exactly the opposite of what you wanted him to do…hmmm. Maybe that means that your pressure campaign, your riling of that mob against Mr Pence, wasn’t part of your job. Hmmm.”
Trump:
“He was the worst Vice President in the history of the universe, worse even than Kamablama Whatshername.”
Smith:
“You mean President Harris?”
Oops! I forgot to post Trump’s comeback:
“If you say so.”
It’s better to lead with an argument than your resume, notwithstanding that conclusory ones don’t fare well. The first we can test, the second becomes credible only after repeated comments.
“Roberts and his mob:” giving mobs a bad name.
Super clear. Precise about what is known and not. Thanks.
“Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.” I am trying to unpack this. Does Smith need to prove an attempted assassination, or just the intent to use the mob block the VP’s certification? How tightly are the obstruction charges against mobsters and those against Mr. Trump linked? Many mobsters argued that they were acting under his instructions in their separate cases; it seems that they were arguing that they were “his [Trump’s] instrument.” Is the crucial thing here that they were his instrument in obstruction, and guilty of it? Sorry to be so detail minded, I am just trying to figure out how narrow the evidentiary gate is for Smith.
lol! NObody around here minds detail. :-)
:) TY
This is just a WAG, but since the charge is obstruction, I suspect he doesn’t need to prove the assassination attempt. That could be argued as a way to keep the mob motivated toward the goal of obstructing the proceeding.
He can also argue that the threats were designed primarily to keep Pence from returning to the counting process, at which point Grassley (who was down with the fake elector program) was next in line and had expressed the assumption that he’d be doing the deed.
https://www.bleedingheartland.com/2022/06/17/grassley-has-only-himself-to-blame-for-skepticism-about-january-6-denials/
As to the scope of knowledge and intent of crime scene obstructionists:
It is enough for conviction of the crime scene obstructionists to prove they know that Pence was central to counting the EC votes on the documents and their intention was to induce him to do something about those documents which would favor Trump, or impede him continuing the count
But obviously to the extent it is possible to prove a more sophisticated understanding of the details of the criminal scheme and contingencies within it, the stronger the case against them.
@SB:
Another fine point in that regard is that they wouldn’t need to prove anything about Grassley’s actual complicity, because it would only be about Trump’s intention to either remove Pence or subjugate him. Grassley signaled very clearly that he was ready to take Pence’s place and he also signaled that he was easily persuadable about suspending the count. Since Pence wouldn’t accept Trump’s terms {Smith must know that that is a bullet-proof indication that this wasn’t within the ambit of Pence’s Executive duties}, his replacement was paramount in Trump’s mind and the mob was a promising way to get Pence to flee (as was even encouraged by the SS in the garage). Grassley certainly gave the signals that he was compliant, and that’s why Trump pushed the crowd as Pence and family huddled in the cellar.
If you read that link, you’ll see the lengths, post-riot and -certification, that Grassley went to to distance himself from that scenario, but he did make that bold claim for the gavel on the 5th (which was quickly withdrawn — as much for fear that it would steel Pence’s resolve — which it most likely did — as for Grassley’s personal legal-liability instincts kicking in).
It was always going to be a half-assed coup-attempt with Trump at the helm. That’s where his similarity with Mussolini gets stretched.
Prosecutors in the Proud Boy Leaders case called the mobsters “tools.” They weren’t co-conspirators. Only those who shared communications with the Proud Boy leaders were treated as such, to have their own communications entered.
But prosecutors have intended from the start to show how people followed Trump’s orders. This post, for example, shows how in past cases, prosecutors made sure to show the influence Trump’s instruction had on people. Some others whose obstruction case prosecutors will undoubtedly try to preserve are the guys who first broke into the Senate, with one (who flipped early) rappelling down to the floor and letting everyone else in.
Last winter, Jack Smith appears to have added the guy who pushed this “tools” approach, and Trump made efforts to disavow the videos of what these people did from his prosecution.
Re: Assassination, that’s not necessary at all for obstruction to stick. It would be for insurrection, I think.
TY!
I recall some mobsters also characterized themselves as tools. Nordean, right? Something like “we followed [Trump’s] lead and never questioned it.”
Is it safe to say one possibility that the immunity ruling was so vague is so the SC 6 can make future decisions a la carte, depending on whether they need to block any given Biden action while also giving DT multiple avenues to delay?
Justice Jackson referred to this possibility yesterday: “I was concerned about a system that appeared to provide immunity for ONE individual under ONE set of circumstances … ” [emphasis added]
Ah, ok. Thanks.
In a word, yes. If the President has a (D) after her name, the decisions can be very different than if the President has an (R) after his name.
Nixon supposedly was surprised and declined when told the Plumbers were willing to kill for him. But, of course, Trump would not have declined. And Roberts would have been okay with that, because Oval Office.
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A couple of other things that flow from Dr. Wheeler’s suppositions:
1. Most importantly, if Smith can convincingly show that the mob was Trump’s instrument of obstruction of the vote counting AND the mob was indeed intent on attempting to assassinate Mike Pence, then under the sentencing guidelines for Conspiracy Against Rights, Trump could be sentenced to an equivalent sentence for attempted murder of the Vice President, which in this case (18 USC 1751) would be “any number of years to life”. Meaning…20 years ain’t necessarily the max here. Of course, this is all presupposing he’s found guilty on conspiracy to obstruct and conspiracy against rights (and general conspiracy would help too).
2. Notice Smith says Trump “issued” a tweet not “wrote” a Tweet regarding Mike Pence’s actions. Something’s always bothered me about that tweet, specifically the last sentence “USA demands the truth”. Who actually says that? Or if they did, where’s the definitive article? Sounds like a non-native American English speaker wrote that. Which means it could’ve already been in Trump’s draft tweets folder which would be powerful evidence of premeditation here, let alone the question of possible foreign influence in Trump’s messaging by tweet. If Smith has that evidence, especially the evidence of what was in Trump’s draft tweets folder…hoo boy!
“Something’s always bothered me about that tweet, specifically the last sentence ‘USA demands the truth’. Who actually says that? Or if they did, where’s the definitive article?”
The tweet, as issued, is 278 characters; Twitter’s limit is 280.
Is very interesting, for sure.
Did Russian write post, or is just Trump’s bad grammar?
Well there you go, shows what I know. Not on Twitter.
A lot of what Trump says or tweets sounds like non-native, or at least non-standard English. However, coming in at two characters under the maximum does point to “issuing” something that was pre-composed, hence to premeditation.
“USA demands the truth” is exactly like something Trump would say since in his mind he was (and is) the embodiment of the USA. But I’m not sure if there is a legal distinction between tweeting something and “issuing” something someone else wrote. That’s for the lawyers to sort out.
I have suspected at times that he was using something someone sent him. Roger Stone drafted a bunch of pro-Russian Tweets for Trump to use in August 2016, for example (Trump’s staffers prevented him from posting them).
If Smith knows that happened, though, he’s not telling.
Re: usage of ‘issue’ with respect to tweets
There are by my count 6 paragraphs referring to tweets, the first 3 referred to the Defendant tweeted, re-tweeted, tweeting
Tweets
Para 68 19/Dec
Para 69. 23/Dec
Para 72 1/Jan
Para 79 5/Jan issuing a (2) , b
Para 82 6/Jan issued a, issued b
Para 94 6/Jan personally and without assistance issued – the smoking tweet
Paragraph 94 stands out for the qualifier “personally and without assistance”
So whereas the prior paragraphs implicitly encompass the possibility that others may have had some (unspecified) hand in the tweet in question, (but the Defendant is not in a position to disavow they express his views and intentions as private acts,) as to the last tweet Special Counsel think they can prove that Trump is definitely solely responsible for that tweet being sent out at that time.
They have Dan Scavino locked into that testimony, among other things.
I feel like this verb choice may be important and intentional. If they’re using “issued” I’m guessing they have evidence that the tweet in question was sent by Trump’s personal phone, as opposed by say Scavino’s.
However, they probably only know that Trump personally hit the send button for the smoking tweet due to Scavino’s testimony and the fact that Trump was alone in the dining room at the time.
I wonder if Smith is going to argue that unless we know Trump was responsible for hitting send then it’s not an official act.
And the smoking tweet cannot be an official act under Blassingame bc it is about something that is explicitly not in his authority, namely the certification of the electors’ certificates. Moreover, Smith is alleging the tweet is an overt act in furtherance of obstructing the vote counting, so it’s kind of hard to argue that the Take Care clause applies here if Trump is knowingly committing a crime.
Slightly OT, but…as we thinking about this superseding indictment and the appeal to the 11C on the Florida case I was just wondering… A lot of Trump’s legal arguments are those which may be called First Impression cases. Thus every issue, no matter how small is appealed and then presented to SCOTUS for final review. It takes a lot of funds to support all these lawyers, which I believe are currently being funded by the campaign and/or RNC. If Trump loses in November, will there be an appetite for donors to continue to fund these cases? If Trump loses in November, will Lara Trump continue to have her role in the RNC and thus control over the checkbook? Will there continue to be funds available to pay for legal teams advising the co-conspirators?
No to all of those questions. They’ll have zero use for him if he loses, and in some cases may even sue the campaign to get donations back.
They will also have “zero use for him” should he win.
Indeed, they may have more use for him if he looses.
I believe the bulk of Trump’s legal bills are being paid by the Save America Leadership PAC, see https://en.wikipedia.org/wiki/Save_America, and not the campaign or the RNC. The RNC said they would not be able to continue paying his legal bills once he became a candidate.
As long as he can get the rubes to keep giving him contributions he can fund his legal fees using them.
Well, take a lookie at this here fundraising effort!
https://x.com/AdamParkhomenko/status/1828451144508600491
OH! He does the accordion hands all through that video! He’s lying about everything in that promo.
ADDER: OMFG it’s a storefront for receiving crypto “payments” holy crap it’s literally like BUY ME WITH YOUR CRYPTO (soto voce and I’ll throw in some “cards” like classified materials).
BREAKING! Down on his luck ConMan reduced to selling his own clothing.
Why do I assume that there will be enough cloth issued to make at least a dozen Shrouds of Turin, or even a Christo installation stretching from Mar-a-Lago to DC?
Crisco, more like.
Holy fuckmoly.
And he’s selling his cut up clothing like Catholic relics.
But his wink with the boxing gloves on is pretty seductive…
I keep pondering what would happen if Biden blackmailed SCOTUS to withdraw their immunity ruling:
“John Roberts and the Supreme Court have bestowed me with Total Immunity when I as, Commander in Chief, use Official Acts to enforce the Constitution. I think this is a severe misreading of everything our country stands for. However, I didn’t create this MAGA Supreme Court, and their law is law. On this note, as Commander in Chief, I intend to order the US military and DOJ to enforce the 14th Amendment ban on insurrectionists holding office in exactly two weeks. SCOTUS can withdraw their unamerican ruling during this time and I will relent. Thank you and God bless the USA”.
Not sure that would fly, or that Biden would stoop to it. Of course, if this were a Tom Clancy novel, President Ryan OF COURSE would do it. Like, totally dude.
In what way do you think it wouldn’t fly though? Would the Supreme Court file an injunction?
It wouldn’t fly because it would require the compliance and complicity of hundreds of people who don’t have immunity from prosecution.
Of course Biden wouldn’t stoop to it. But it makes a great Tom Clancy plot.
In your nightmares. The proposition seriously misreads Joe Biden and the current Supreme Court majority.
Biden has said since the Presidential immunity decision that he will NOT use any such immunity and will work on legislation to reverse that Supreme Court decision. Biden has also said he won’t pardon or commute any legal sentence for Hunter Biden.
But people like fantasy I guess.
Which part is fantasy.
Excellent research and analysis!
And you are right about CJ Roberts; there is no telling how he’ll view Smith’s use of Pence’s testimony.
Roberts was a Republican Party hack before he became CJ, so I have little confidence he’ll rule in Smith’s favor regarding Pence’s testimony.
Roberts and Bill Barr both believe they are on a mission to save the Republican Party; consequently, each believes it’s necessary to protect and support Trump because Trump is today’s Republican Party.
Another concern I have is that the six conservative Justices will also compare Smith’s original indictment to his new superseding indictment (their staff will) and claim the changes Smith made are essentially cosmetic only.
In hindsight, I wish Smith’s attorneys had used some of the new descriptions of Trump and Pence, as candidates only, as noted in the superseding indictment, in their original indictment.
I always wish my hindsights were actually foresights!
Yes, the absurdity of immunizing an incumbent for acts deemed “official” under an invented, overripe-onion-like definition of that term is elevated to the level of farcical enablement of autocracy when such acts are in furtherance of checking the remaining and much-ballyhooed means of holding an incumbent accountable: the ballot. The Roberts doctrine of presidential immunity is a worm is eating its tail. Just as the Founders intended, no doubt.
An ouroboros, perhaps. Roberts’s logic would allow the president to mount a successful insurrection or commit a litany of other crimes without liability, so long as he uses personnel with whom he normally had an official reason to communicate. All to protect Trump and any Republican successor. He’s relying on Democrats not to use such protection. Pity those personnel have no such immunity, absent a pardon. Given time, Roberts will fill that gap, too.
From ROBERTS’ [ew: “radical decision”], TRUMP v. United States, 7/1/24:
Has anyone started a list of TRUMP’s “outer perimeter [] official responsibilities”
which are “not manifestly or palpably beyond [his] authority”?
One that I would nominate:
Awkward moment when Trump pushes a prime minister at NATO conference
The president used his muscle. https://abcnews.go.com/Politics/awkward-moment-trump-pushes-prime-minister-nato-conference/story?id=47644082 May 25, 2017 [VIDEO]
Roberts may feel that Trump ordering pizza or McD’s by tweet counts as official – to feed the presidential appetite – no one else would. There are a large number of similar subjects have no logical connection with a president’s official duties. Not even within their outer perimeter. (Understandably, Roberts’s language creates the appearance of an errant monarch under siege.)
Trump vs. Hawaii, as y’all may recall, resulted in a 5-4 SCOTUS decision which upheld Trump’s travel ban, which also gave lip service to Korematsu vs. United States (WW2 internment camps). Breyer and Sotomayor wrote illuminating dissents, especially the former who wrote, presciently with the Roberts Court, “Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial fact findings.”
What comes next in the DC Obstruction case? By characterizing trump as “candidate,” Smith is trying to bypass the presidential Immunity claim bestowed by SCOTUS. No doubt, trump’s lawyers will object and claim that trump is immune. It will be up to Judge Chutkan to make the call. I doubt she needs a “mini trial” to decide. Then trump’s defense team will appeal if Chutkan rules in Smith’s favor. Up to the DC Appeals Court once more. If the DC Appeals Court rules in Smith’s favor, then trump’s lawyers will appeal to SCOTUS again. In short, the time frame will drag out for a long time. And if trump wins the election, this indictment will be wiped out. If trump does not win the election, he will be defending himself in trials for years to come. The voting public will render their verdict on trump on November 5, roughly 70 days hence.
It’ll be interesting to see where he gets the money to “be defending himself in trials for years to come.”
Especially if the ruble continues to be devalued. But there are plenty of billionaires with US$ that seem to find it easy to spend a few $$$ on this cause.
It seems for the very rich that the value of the $ is quite intangible – they have so much and can conjure up so much more with ease, that it’s like tossing pallets of $100 bills onto the Iraqi people.
Can we think ahead to Friday, January 3, 2025? There will be a new Congress. The incumbent VP may well be the President-elect by reasonably verifiable information. Yet there may be states refusing to certify their electors, and some of those could be state that the incumbent VP won.
The incumbent President and the President-elect may want to think about those contingencies and consider a process of certifying the election if a subset of certifications gives the winning candidate the necessary electoral margin. The makeup of the new House and Senate will affect plans.
By Friday January 3, 2025 there maybe fraudulent electoral certificates in the Senate chambers. How will the sitting VP treat them? How will the sitting President be involved?
To reform the Supreme Court, Congress must remove by law the Court’s jurisdiction over federal elections.
Statutes, “by law,” are the only way to adjust federal courts’ jurisdiction.
Once you’ve taken away the federal courts’ jurisdiction, what oversight do you have instead?
Initially, I was not pleased by the SCOTUS decision regarding Presidential immunity. But in the time that has since passed, I think the SCOTUS handed the American people a victory. The courts will now decide what is an official POTUS act, and what is not.
\
This decision left a path for Special Counsel Jack Smith to pursue a narrowed case that targets only conduct for which Trump is not immune. Many were saying the August 2023 indictment was too broad. This superseding indictment is more narrow and focused.
This newest filing is a reminder of the powerful criminal charges against Trump. Together with the pretrial proceedings to follow, this development thrusts the question of Trump’s criminality back into public focus during the heart of the campaign – which is a good thing for the American democratic republic.
Now, how certain American receive and perceive the information that will come out, is an entirely different matter.