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Trump Will Stage an Emergency to Ban Jack Smith’s Book Report

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I expect, on top of everything else this week, Trump’s lawyers are going to claim an emergency to try to ban Jack Smith’s book report, currently due Thursday.

As you’ll recall, after Judge Tanya Chutkan finally got the Trump January 6 case back, she agreed with Jack Smith’s proposed path forward: They would submit a brief explaining how the superseding indictment complies with the Supreme Court’s immunity opinion. Chutkan set a deadline of September 26, Thursday, for that brief.

Trump seems certain that if voters see that brief, he will lose the election.

Last Thursday, Trump’s lawyers submitted what was supposed to be a discovery filing, in which they basically said, “NOOOOOOO!!!!! No briefing before the election.”

Dismissal is required to protect the integrity of the Presidency and the upcoming election, as well as the Constitutional rights of President Trump and the American people.

Judge Chutkan does not have to rule on those issues before determining the immunity question, though, so the filing was better read as, “Help me Sammy Alito!!!! Help me John Roberts!!!! You’re my only hope!!!”

Yesterday, Jack Smith submitted a request to file excess pages, 180 pages instead of 45. In it, he disclosed that Trump objected and wanted a chance to respond, with the deadline set for Tuesday, September 24.

Defense counsel opposes the Government’s motion at this time, and requests that the Court set a deadline of September 24, 2024, 5:00 PM ET for the defense’s response.

Judge Chutkan ordered Trump’s team to file their opposition one day earlier, Monday September 23 (note: Trump’s team filed their last filing after 5PM, after which Judge Chutkan made it clear she’ll permit no more of that).

Defendant shall file any opposition to the Government’s [237] Motion for Leave to File Oversized Motion by September 23, 2024 at 5:00 PM ET.

Trump will oppose not just the excess pages, 180 instead of 45, but the entire filing. Now he’s got one less day to make that argument.

Which is what you need to understand the other things in the Jack Smith request. Trump is going to stage an emergency to get this question elevated to SCOTUS to prevent the filing this week. He will try to take things SCOTUS ordered Chutkan to do out of her hands, to put them back before SCOTUS.

Anticipating that, Smith starts his request by laying out that he is just trying to do what Chutkan ordered, to show that SCOTUS ordered precisely this briefing.

In Trump v. United States, 144 S. Ct. 2312, 2340 (2024), the Supreme Court emphasized the “necessarily factbound” nature of any presidential immunity analysis. See id. at 2339 (“Determining whose characterization may be correct, and with respect to which conduct, requires a close analysis of the indictment’s extensive and interrelated allegations.”); id. at 2340 (“The analysis therefore must be fact specific and may prove to be challenging.”); id. (“Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.”). The Supreme Court remanded to this Court “to determine in the first instance—with the benefit of briefing we lack—whether [the defendant’s] conduct in this area qualifies as official or unofficial.” Id. at 2339.

A few paragraphs later, he describes that because this review will be what SCOTUS reviews on appeal, the record must be comprehensive. Thus the need for 180 pages.

The Court has been directed to conduct a detailed, factbound, and thorough analysis of the Government’s case to make appropriate immunity determinations. Because the Court will make determinations “in the first instance” that will be subject to exacting appellate review, it is essential that the Court ensure that the record in support of its determinations is complete. The Government believes that a comprehensive brief by the Government will be of great assistance to the Court in creating that robust record, and the Government thus seeks leave to exceed the typical limit for a single motion. See Local Crim. R. 47(e) (limiting opening motions and oppositions to 45 pages and replies to 25 pages).

Smith goes into detail about the breakdown of those 180 pages: half is narrative, thirty pages are footnotes, a bunch are exhibits. Those details will only matter if we ever get to see it.

Remember: Trump is looking for some basis to cause an emergency that will allow him to get back to SCOTUS. So Jack Smith will (and probably would have, in any case) submit the filing under seal, and only afterwards work on unsealing it for the voting public.

For the Court’s awareness, the opening brief and its exhibits contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction. See ECF No. 28 ¶¶ 11-12. Because of the extensive and time-consuming logistics involved in finalizing the brief, appendix, and proposed redacted public versions of the same, the Government respectfully requests the Court’s decision on this motion as soon as practicable.

Voila, no emergency.

But without creating such an emergency, then Chutkan will get a look at the argument.

I honestly have no idea how it’ll end up. I’ve been wracking my brain for what procedural reason Trump’s team could use to declare an emergency.

But with this SCOTUS, it doesn’t have to be all that plausible.

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John Lauro’s Mike Pence Gateway Drug

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As I laid out last week, Trump’s lawyers want to make the entire immunity discussion about his January 6 indictment about Mike Pence; they had wanted to do so after the election. They argued in their status report that Jack Smith will be unable to rebut the presumption invented by John Roberts that discussions with Mike Pence are immune from prosecution.

[I]n Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“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.”). [emphasis original]

As it became clear at last Thursday’s hearing that Judge Tanya Chutkan wasn’t going to let Trump delay until after the election, Trump’s attorney, John Lauro, made a number of desperate bids to — first — limit the entire immunity discussion to Mike Pence, and then limit that discussion to legal issues, not evidentiary ones. This seems to be an effort to prevent actual facts, including previously undisclosed ones, from being disclosed before the election.

Here’s how Lauro described it. All sides agree that the immunity decision treated conversations between the President and the Vice President as presumptively immune (though Judge Chutkan stumbled on this once). Lauro asserted that the standard the Supreme Court set on whether prosecutors could rebut this presumptive immunity was whether using conversations between the President and his Vice President would intrude on important presidential functions. If it would, those conversations would have to be immunized and, because the grand jury was exposed to them in the process of superseding the indictment, the entire indictment would have to be thrown out.

MR. LAURO: That’s what I’ve said, that that’s an official act.

So as a matter of — as an initial matter, the issue before the Court is whether or not the Government can overcome the presumption, whether or not they can show that there’s no way, no possible way, that the lack of immunity would result in an intrusion on an important presidential function.

They can’t show that. And if, in fact, the communications with Vice President Pence, which are all over this indictment, if, in fact, those are immune, then that entire indictment is improper and illegitimate. And that’s a gateway issue that your Honor needs to decide right away.

That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

A bit later in the hearing, Lauro argued that Judge Chutkan could first rule on the legal issues — the ones the Supreme Court already did rule on — and only then turn to the evidence.

MR. LAURO:  [T]he issues here, your Honor, at least initially, can be decided on a legal basis. Obviously, there’s some room for your Honor’s determination as to the timing. But the structure, the sequencing, makes perfect sense in terms of the way we proposed it.

That’s when he raised the election.

MR. LAURO: These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them. That would be an inherently unfair and inequitable process.

THE COURT: It’s not unfair in the sense that you don’t get an opportunity to address the issues. You’re just doing it in a different sequence. There’s nothing inherently violative of due process by the Government filing an open brief and your getting an advance look at their arguments, have a chance to respond and address them. The Government replies. And if you want to file a sur-reply, you can ask for leave to file a sur-reply. But there’s nothing inherently unfair in that. It’s just a matter of who goes first.

MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —

THE COURT: Ah.

Judge Chutkan dismissed the notion that any of this should be delayed in light of the election because it — Trump’s past action — is not a dispute about this election.

THE COURT: Let’s just — let’s just discuss what the sensitive time is. I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here. This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

MR. LAURO: I’m not asking you to consider it. But the courts have routinely said that courts should not be drawn into election disputes. And there is an inherent unfairness in the legal process —

THE COURT: Oh, I am definitely not getting drawn into an election dispute.

MR. LAURO: Right. And what I’m saying is that this process is inherently unfair, particularly during this sensitive time that we’re in.

Then, after Lauro raised issues of discovery and grand jury testimony, he doubled and tripled down on his bid to keep this evidence out of the public view before the election, leading to this crescendo, before Judge Chutkan cut him off.

But for them to selectively decide how they want to portray their case before we move to dismiss is completely contrary to the Rules of Criminal Procedure. It shows fundamental unfairness never before seen in a district court.

And it’s exactly the kind of proceeding that the Supreme Court said should never take place, and it’s the reason that the Supreme Court, I believe, in part ruled as it did, that these issues are very important. They need to be developed with some legal care in a very transparent and careful way.

This is not behind-the-envelope — or back-of-the-envelope jurisprudence. This has to be done in a very, very deliberative way.

What we’re suggesting is your Honor deal with the legal issues first in accordance with the Supreme Court ruling and then turn to the merits of the evidentiary issues that need to be developed. That way, it’s structured. If your Honor decides — and your Honor may very well decide — that the information relating to Vice President Pence is not only presumptively immune, but immune, then that indictment has to be dismissed.

Why do we go through merits arguments on presidential immunity when as an initial matter the Court can dismiss this case right away? And that’s exactly what the Supreme Court said you should look at. Let’s deal with the gateway issues first. And that’s the way the Court structured the opinion.

THE COURT: Well, when the Supreme Court considered this case, Mr. Lauro, they had the original indictment in front of them, which set forth all the communications with the former vice president that are — that you’re talking about.

They could have ruled then that the indictment was so permeated with those kinds of contacts that it should be — that it couldn’t hold up. They didn’t. They sent it back to me to make certain findings, not just with regard to those communications, but with regard to all the allegations in the indictment.

So I’m not sure that I agree with you that as a matter of law I could just dismiss the indictment based on the Supreme Court’s — dismiss the superseding indictment based on the Supreme Court’s decision at all.

MR. LAURO: Of course you can. Because the Supreme Court — and the ruling is clear, crystal clear — has already decided that the communications with Vice President Pence are official acts within the outer perimeter of the presidential responsibility. That is the case law of this case right now.

The only issue with respect to Vice President Pence is whether or not they can overcome the presumption of immunity, which is an incredibly high bar. They have to show that under no circumstances, under no circumstances is there any intrusion with respect to the authority and responsibility of the presidency in light of those communications.

That’s an incredibly high bar. Your Honor can decide that as a legal issue guided by counsel. We can make whatever proffers are necessary.

If your Honor decides that that is immune, then the whole indictment craters. It goes away. Because the Supreme Court decision made very clear you can’t use immunized testimony with respect to an indictment or otherwise at trial.

So this is a logical way for the Court to deal with these issues. What they’re suggesting — and I don’t think your Honor is suggesting it, but asking questions about it — is that we leapfrog over the legal issues. We get —

THE COURT: That’s not what I’m suggesting.

MR. LAURO: No. I’m not suggesting you’re suggesting it. I’m suggesting that’s what they’re suggesting.

THE COURT: I actually don’t think that’s what they’re suggesting.

MR. LAURO: Well, they are in this respect: They’re suggesting they leapfrog into merits-based argument over all the official acts. Right? They’re going to do their big proffer.

All of that is wasted time if your Honor decides initially that the Pence communications are immune and they didn’t overcome the presumption.

We can avoid months and months of briefing by your Honor dealing with the gateway issue first. That’s exactly what the Supreme Court said you should be doing.

THE COURT: All right. I think I’ve — you’ve made your argument on that point.

There’s nothing legal available to Judge Chutkan that wasn’t already available to the Justices. There’s no conceivable way SCOTUS could have imagined Chutkan could carry out this inquiry without looking at the facts. And Lauro is misrepresenting SCOTUS’ concern with a jury seeing such immunized communications and a judge seeing them — after all, judges routinely weigh in on whether things like Speech and Debate communications are immunized, most recently in Scott Perry’s challenge to a warrant for his phone.

Now, Lauro may not be wrong that when SCOTUS reviews this after the election, they’ll agree that the bar is as “incredibly high” as Lauro suggests. We all thought he was batshit when he said the President would have this kind of immunity the first time, but he ended up rightly predicting that the Republican members of SCOTUS were that corrupt.

Here’s what the immunity decision actually said.

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 of Interest 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.

But there are three underlying tensions here.

First, quite early on, in the first time Lauro presented this argument to Judge Chutkan, she described that she wouldn’t be doing what SCOTUS told her to do if she didn’t conduct a fact-based analysis. She noted, as she would later, that the Supreme Court had everything Lauro claimed she could rely on — the indictment — but they didn’t make the legal decisions he said she could make without reviewing the evidence.

But when she made that argument the first time, she noted that she could be reversed (this would include the DC Circuit) if she didn’t conduct this fact-bound analysis.

Then Judge Chutkan, whose original opinion seemingly stated basic facts inherent to the Constitution was reversed by a decision that dramatically rewrote the Constitution, repeated, again, that she could be reversed no matter what.

MR. LAURO: That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

THE COURT: I actually don’t think so, Mr. Lauro. The Supreme Court had the indictment before it. They decided — they ruled on these three categories. And certainly conversations with an existing vice president may be subject to the presumptive immunity that you talk about. But one of the things I have to decide is whether, based on facts presented to me by the Government, those conversations, those contacts, are somehow outside of his official duties.

MR. LAURO: I —

THE COURT: And I don’t think I can decide that as a matter of law. I think I would be — I would be risking reversal if I tried to decide that as a matter of law.

MR. LAURO: I would ask your Honor to reconsider —

THE COURT: I’m risking reversal no matter what I do.

Given the Calvinball the Supreme Court is playing with the Constitution, there’s literally no way she can avoid reversal by someone. So Lauro’s procedural complaint rings especially hollow. She’s likely to be reversed by somebody before this is over. I do agree she’s doing what SCOTUS told her, but even if she weren’t, all the normal incentives would be gone.

Plus, my guess is that Jack Smith will start from a different point, one Lauro never considered. The Supreme Court’s opinion assumed everything the President did was in the persona of the President. But the Blassingame decision that they pointedly did not address, at least, imagines that as candidate-for-President, nothing Trump did was an official act. When the President asks the Vice President to cast a tie-breaking vote to confirm a judge, he’s doing so as President. But when a candidate asks his running-mate to throw out 81 million votes, he’s doing so as a candidate, not a President.

And that’s something that Chutkan missed when she reminded Lauro, twice, that. “the original indictment in front of [SCOTUS …] set forth all the communications with the former vice president that are.” Not all the communications with Pence from the original indictment are in there. The superseding indictment took out several references Trump made, in conversations with Pence, to the Justice Department.

On December 29, as reflected in the Vice President’s contemporaneous notes, the Defendant falsely told the Vice President that the “Justice Dept [was] finding major infractions.”

[snip]

76. During the meeting, as reflected in the Vice President’s contemporaneous notes, the
Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?”

That’s important for two reasons. First, because it provides even further reason for Chutkan to conduct a fact-bound analysis.

But it also raises the question: What happens when Trump tries to reintroduce these references to DOJ? If he tries to use them to prove that Trump was speaking in his role as President, does that amount to a waiver of the immunity that Trump has worked so hard to get?

John Lauro worked hard to insist that everything involving Pence be excluded without closer review. But unless he invents a procedural reason to forestall DOJ’s memo on September 26, DOJ will get one (or two, with the reply) chances to lay out — before the election — how Trump tried to use his incumbency, and Mike Pence’s role as President of the Senate, to steal an election against from Joe Biden and the woman who currently is the President of the Senate.

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The September 26 Brief We’ll Get in the Trump January 6 Case

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As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.

Here’s how Thomas Windom described it in Thursday’s hearing:

MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.

THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?

MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.

But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.

We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.

We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.

THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?

MR. WINDOM: That’s right, your Honor.

Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.

THE COURT: How much of that information do you anticipate is going to be under seal?

MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.

But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.

We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.

Here’s the operative language from the Protective Order.

11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.

12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.

But Judge Chutkan would have the final say.

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Trump Will Have to Defend His Attempt to Assassinate Mike Pence Before the Election

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Judge Chutkan has issued her scheduling order for the next developments in Trump’s January 6 trial.

Rather than scheduling Trump’s frivolous attempt to challenge Jack Smith’s Special Counsel appointment first, Chutkan will instead deal with immunity first, with all briefing due a week before the election.

September 19, 2024: Defendant’s Reply briefs in support of his Motion to Compel, ECF No. 167, and Motion for an Order Regarding Scope of the Prosecution Team, ECF No. 166-1. The Reply briefs shall also identify any specific evidence related to Presidential immunity that Defendant believes the Government has improperly withheld.

September 26, 2024: The Government shall file an Opening Brief on Presidential Immunity.

October 3, 2024: Defendant’s Supplement to his Motion to Dismiss Based on Statutory Grounds, ECF No. 114.

October 17, 2024: Defendant’s Response and Renewed Motion to Dismiss Based on Presidential Immunity.

October 17, 2024: The Government’s Response to Trump’s Motion to Dismiss Based on Statutory Grounds.

October 24, 2024: Defendant’s Request for Leave to File a Motion to Dismiss Based on the Appointments and Appropriations Clauses.

October 29, 2024: The Government’s Reply and Opposition. After briefing, the court will determine whether further proceedings are necessary.

October 31, 2024: The Government’s Opposition to renewed challenge to Special Counsel.

November 7, 2024: Defendant’s Reply on renewed challenge to Special Counsel.

It’s not yet clear how much of the briefing on immunity will be unsealed.

But this defeats Trump’s bid to delay explaining how almost getting his Vice President assassinated was an official act until after the election.

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Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

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In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“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.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

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The Superseding Trump Indictment Is about Obstruction as Much as Immunity

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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:

  1. Removal of everything having to do with Jeffrey Clark
  2. 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)
  3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
  4. 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
  5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
  6. 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.

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Be Careful What Trump’s Lawyers Wish For, Superseding Indictment Edition

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On Friday, first Bloomberg (Yahoo version), then NYT reported that Jack Smith “has decided against seeking a major hearing” to address which of the allegations charged against Donald Trump were official versus unofficial acts. Here’s Bloomberg:

Special Counsel Jack Smith has decided against seeking a major hearing to present evidence in the election-interference case against Donald Trump before voters go to the polls Nov. 5, according to people familiar with the matter.

The move means that it’s unlikely a so-called mini-trial, which would include evidence and testimony from possible blockbuster witnesses like former Vice President Mike Pence, would take place before the presidential election.

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. If Trump wins the election, the case would collapse as the Justice Department has a policy against prosecuting sitting presidents. Trump could also order the department to throw it out.

Instead, Smith and his team are carefully revising the case against Trump, according to the people familiar, who asked not to be named discussing a confidential matter. [my emphasis]

The emphasis here was on a supposed “win” for Trump’s lawyers, though they haven’t actually done anything to get that win. They haven’t filed a brief, they haven’t made any formal requests. This is a “win” that they did nothing — at least, nothing since SCOTUS rewrote the Constitution for Trump — to earn. Though the piece is right: If Trump wins the election, it seems impossible that this prosecution will lead anywhere, and Smith’s reported decision not to ask to explain the charges in more detail makes it less likely that such a mini-trial could have a bearing on whether Trump does win or not. (While Bloomberg states that “Trump’s lawyers didn’t immediately respond to a request for comment,” that description doesn’t rule out that this story was sourced to someone close to Trump, and the story does cite Trump’s spox, who seems to have just ranted about witch hunts.)

The NYT provides a better sense of whence the hopes for a mini-trial before the election came — from outside commentators (probably including me), not from anything Smith had officially said — which is important to making sense of this development.

Still, the ruling left open the possibility that Mr. Smith’s prosecutors could use a public hearing to air some of the evidence they had collected against the former president before Election Day. Several legal experts and commentators seized on the idea, saying that a hearing like that would almost resemble the trial itself — albeit without the finality of a jury verdict.

And yet such a proceeding was always going to be fraught with complications — not least if it ended up being held in the homestretch of an election in which Mr. Trump is seeking to return to the White House.

Neither of these stories mentions the last official thing we did hear from Jack Smith: that his team needed an extra three weeks, from August 9 to August 30, to consult with other DOJ components, as required by Special Counsel regulations.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. . See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

So two weeks before these stories, Jack Smith said, we need more time to talk to other people at DOJ to decide our “position on the most appropriate schedule … to brief issues,” though, as I noted here, Special Counsel regulations would not technically require consultation about the timing of hearings or briefs regarding the case in its current posture, especially given Jack Smith’s past representations that DOJ guidelines on elections would not have prohibited holding an actual trial in the pre-election period. And then, in the two weeks since, “people familiar with the matter” have decided, heard, or learned that the most appropriate schedule does not include a mini-trial, which is not something that Smith had ever publicly considered in the first place.

And neither of these stories fully address that, in most circumstances, this would not be Smith’s decision to make. Bloomberg says, “Chutkan could overrule Smith and order a major hearing prior to the election.” NYT describes that, “Judge Chutkan could in theory still order such a hearing to be held.” NYT does walk through the range of alternatives to do what SCOTUS ordered, that is, to sort through which parts of the indictment are official acts and which are not. But, in most circumstances, it was never Smith’s position to demand a public hearing, and nothing he ever said indicated he intended to do so. The goal of a mini-trial, as NYT reported, came from outside commentators.

There is one circumstance, however, where Judge Tanya Chutkan would not have a chance to weigh in. And it is one circumstance that is alluded to by both of these pieces, without addressing its potential implications. NYT states that prosecutors might seek what it assumes would be a pared-down indictment.

The prosecutors could also seek to bring a new, pared-down indictment against Mr. Trump focusing on charges they believed arose from acts undertaken in his private role as a candidate for office, not in his official role as president.

Bloomberg cites (and includes in its subhead) that prosecutors “are carefully revising the case.”

You can’t change a word in that indictment — you can’t take out all references to Jeffrey Clark’s role in subverting the election, the one thing SCOTUS said has to happen — without going back to a grand jury and superseding the original indictment. But even just doing that would put Jack Smith in the driver’s seat, effectively giving him the first shot at drafting what should and shouldn’t be included among unofficial acts that constitute crimes.

If Jack Smith is really doing what Bloomberg says — revising the case — then they have decided that they will supersede the indictment.

Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.

So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:

  • Consultation with the Solicitor General’s office regarding edge cases on official acts
  • Consultation with DC USAO on how to apply obstruction more generally
  • Approval from Merrick Garland for new types of charges against Trump on January 6 actions
  • Approval from Merrick Garland for charges pertaining to January 6 aftermath

Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.

Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.

Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.

Here’s what such an argument looks like in the case of Matt Loganbill:

At the time Fischer was decided, approximately 259 cases of the over 1,400 cases charged in the January 6 prosecution involved the application of §1512(c)(2). Some of the 259 cases were convictions at trial, while others were convictions through pleas. Some of those are currently pending trial, whereas other defendants have served their sentences of incarceration fully. As a result of Fischer, the government has endeavored to review cases – particularly those cases pending appeal, pending trial, or actively serving a sentence – in a timely and responsive fashion. Of those original 259 cases, the government has, as of the date of this filing, sought to forgo application of §1512(c)(2) – either post-conviction, pending appeal, or pending trial, in over 60 cases.5 The government continues to evaluate and/or litigate §1512(c)(2) in a variety of contexts. In this case, after a careful analysis of the Fischer opinion, the government contends that the defendant violated the statute and intends to proceed with the charge.

[snip]

  • 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

5 The government’s decision to forgo charges should not be read as a concession that the defendant’s conduct does not meet the test as articulated by Fischer. Rather, we are evaluating the facts on a case-by-case basis, including whether the defendant committed other felonies, whether the criminal penalties of other applicable crimes sufficiently serves the goals of 18 U.S.C. § 3553(a), and whether additional litigation is warranted. This process is appropriately time-consuming.

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.

DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).

It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.

Approval from Merrick Garland for new types of charges against Trump on January 6 actions: In my last post, I also suggested that Jack Smith could be considering adding insurrection charges against Trump. I argued that the three opinions protecting Trump — Immunity, Fischer, and Colorado — squarely permit such a charge. Notably, the immunity ruling said that acquittal on a charge, like the insurrection charge on which Trump was impeached, does not prohibit criminal charges for the same crime. And the Colorado decision noted that insurrection remains good law. If Smith decided he wanted to do this, it would require approval from Garland. I consider it an unlikely move (not least because some of the evidence to prove it would still be inadmissible under the immunity decision). So go read my earlier post for more on this.

Approval from Merrick Garland for charges pertaining to January 6 aftermath: By design, SCOTUS has made it really hard to prove the case against Trump, because it requires Jack Smith to successfully argue that Trump’s own speech — even his Tweets!! — are unofficial acts, when SCOTUS has made them presumptively official. Smith would not face the same difficulty for his speech as a private citizen. And a significant swath of the known investigation actually pertained to things Trump did after he left office: That investigating how he used donations made in the name of election integrity to do things entirely unrelated. It’s unclear why Smith dropped that side of his investigation, but it’s something that would face fewer of the challenges created by the immunity ruling.

Similarly, Smith had already asked to use statements Trump made after the period of the charged conspiracies (which go through January 7 or January 20) to threaten those who debunked his voter fraud claims.

In apparent response [to January 6 Committee testimony], the defendant then doubled down and recommenced his attacks on the election workers in posts on Truth Social. He even zeroed in on one of the election workers, falsely writing that she was an election fraudster, a liar, and one of the “treacher[ous] . . . monsters” who stole the country, and that she would be in legal trouble.

The Government will introduce such evidence to further establish the defendant and his co-conspirators’ plan of silencing, and intent to silence, those who spoke out against the defendant’s false election fraud claims; the defendant’s knowledge that his public attacks on officials—like those on his Vice President as described in the indictment—could foreseeably lead to threats, harassment, and violence; and the defendant’s repeated choice to attack individuals with full knowledge of this effect. It also constitutes after-the-fact corroboration of the defendant’s intent, because even after it was incontrovertibly clear that the defendant’s public false claims targeting individuals caused them harassment and threats, the defendant persisted—meaning that the jury may properly infer that he intended that result. Finally, evidence of the defendant’s encouragement of violence and the consequences of his public attacks is admissible to allow the jury to consider the credibility and motives of witnesses who may be the continuing victims of the defendant’s attacks.

Smith also asked to introduce evidence of Trump ratifying the violence of and promising to pardon those who engaged in it, other statements after he left office that would not be entitled to any immunity.

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. Similarly, the defendant has chosen to publicly and vocally support the “January 6 Choir,” a group of defendants held at the District of Columbia jail, many of whose criminal history and/or crimes on January 6 were so violent that their pretrial release would pose a danger to the public. The defendant nonetheless has financially supported and celebrated these offenders—many of whom assaulted law enforcement on January 6—by promoting and playing their recording of the National Anthem at political rallies and calling them “hostages.”

Any crimes that focus on things Trump has done since he left office to undermine democracy would not be entitled to any immunity.

In a presser the other day, Garland pointed to the number of prosecutions DOJ has pursued for January 6, arguing that the prosecutions have “shown to everybody how seriously we take an effort to interfere with the peaceful transfer of power: The last January 6, the coming January 6, and every January 6 after that.” Charging Trump for his continued efforts to undermine democracy would be one way to do that.

I’m not sure if Smith believes he could prove that these constituted crimes. But if he does, he would need Merrick Garland’s approval to charge them.

All that said, there’s the issue of timing. Usually, when DOJ is considering superseding someone, they tell defense attorneys. So I had been wondering, given Trump’s recent rumpiness, whether DOJ had indicated they would. If last week’s stories were sourced to people close to Trump, as opposed to people in DOJ, then it would seem Smith did not do that.

Which gets to another thing Jack Smith would have to consult on: If he were to supersede, when he could do that. And while he would have one more week to roll out an indictment to avoid DOJ’s pre-election deadlines, I think in this case, Garland likely would require Smith to hold off a superseding indictment itself until after the election.

We’ll learn more on Friday. But it’s possible we’ll learn that DOJ intends to supersede the indictment after the election, meaning everything would halt until then.

Update: Tweaked what I meant by Tweets being official or unofficial speech.

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Jack Smith Asks for an Extension

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Judge Tanya Chutkan was clearly ready to get the prosecution of Donald Trump back on the road.

The day after she got the SCOTUS mandate from its immunity ruling, she set a deadline for a status report and status conference, and denying (for now, until all issues of immunity are settled) Trump’s challenge to the application of 18 USC 1512(c)(2).

ORDER as to DONALD J. TRUMP: Setting status conference for August 16, 2024 at 10:00 A.M. in Courtroom 9; requiring joint status report by August 9, 2024; denying without prejudice Defendant’s 114 Motion to Dismiss the Indictment Based on Statutory Grounds; and staying briefing deadlines for the Government’s 191 Motion in Limine and Motion for CIPA Section 6(a) Hearing. Signed by Judge Tanya S. Chutkan on 8/3/2024.

But yesterday, Jack Smith asked for more time, citing the need to consult with other parts of DOJ before proposing a way forward.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision. The Government therefore respectfully requests additional time to provide the Court with an informed proposal regarding the schedule for pretrial proceedings moving forward. The defense does not object to the Government’s request for an extension.

Accordingly, the Government requests that the Court enter an order requiring the parties to submit another joint status report by Friday, August 30.

Of course, no one knows why Smith might need the delay.

By far the most obvious, however, has to do with how DC USAO plans to apply 18 USC 1512(c)(2) going forward after SCOTUS limited the application of obstruction charges in Fischer to matters pertaining to the evidence. Two of Trump’s charges are obstruction, one charged as a conspiracy, the other individually.

Thus far, DOJ has dealt with the crime scene cases implicating obstruction on a case by case basis. Those before Carl Nichols, the judge whose outlier ruling was adopted by SCOTUS, are getting dismissed. But some others are getting delayed, still others are getting recharged under 18 USC 231 (rioting). Sentencing involving obstruction are likewise being delayed.

As Justice Ketanji Brown Jackson noted in her concurring opinion on the obstruction ruling, because the vote certification involved the electoral certifications themselves, some of those crime scene cases might survive this ruling.

That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

DOJ has always argued this was possible. But it’s likely only possible, if at all, for those defendants who knew the import of the certificates themselves.

For Trump, however, the continued exposure is far broader (as Justice Amy Coney Barrett noted in her concurrence on the immunity ruling), because by orchestrating the fake elector certificates, Trump created a fraudulent document.

And DOJ needs to figure out how these two potential bases will interact going forward. Likely, DC USAO also has to consult with the Solicitor General’s Office, to figure out what they think will survive appeal, including how an obstruction charge built on the fake electors would survive.

So that’s probably a big cause of the delay: DOJ, as a whole, has to settle on how they’ll deal with obstruction going forward in light of Fischer. Charges for some crime scene defendants may depend on how Smith approaches obstruction charges against Trump.

But I’m mindful of something else. Jack Smith asked for a delay until August 30, three weeks plus a day from the original deadline. That’s the last day of the month — and that may be the only reason Smith asked for that date.

It’s also probably the last day that DOJ would permit charging anyone political before the election. That is, as has happened with some crime scene defendants, DOJ may be considering recharging this case (or charging others against whom some of these charges would stick).

And, aside from the possibility of charging a bunch of Trump’s co-conspirators, that allows for one very provocative possibility.

Justice John Roberts’ explicitly said that an acquittal on impeachment doesn’t rule out charging that same count criminally.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

So if Jack Smith originally avoided the insurrection charge against Trump to avoid any claim Trump’s impeachment acquittal ruled out such a charge, he has no such worry now.

As the per curium opinion in the Colorado disqualification case noted, insurrection remains on the books (I need to refer back to the hearing transcript, but someone like Justice Sammy Alito made the same observation at the hearing).

And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.

Recharging this to include insurrection is the exact equivalent to what DOJ is doing elsewhere, replacing an obstruction charge with a rioting charge. And it would be consistent with the inclusion of a Proud Boy prosecutor on the Trump case, which I suspect to have occurred.

Again, by far the most likely explanation for the delay is that DOJ is just trying to figure out what to do with 1512 charges, against Trump and all the crime scene defendants.

But the three SCOTUS opinions — immunity, 1512, and 14th Amendment — explicitly leave this possibility. The immunity provision does not exclude charges on which Trump has been acquitted in an impeachment. Elsewhere, DOJ is replacing obstruction with rioting charges. And the 14th Amendment ruling explicitly noted that Insurrection remains good law.

So it is a possibility — and a possibility that would have to be considered by August 30.

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Tanya Chutkan Finally Gets the Trump Case Back

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SCOTUS finally remanded its immunity decision to the DC Circuit and the DC Circuit has, in turn, remanded it back to Judge Tanya Chutkan.

So Trump will finally have to deal with his actions on January 6.

As Brandi Buchman noted, Trump will have to file his appeal of the E Jean Carroll verdict by August 14.

In other scheduling news, Judge Noreika has scheduled the Hunter Biden sentencing for November 13 — much later than it had to be, delaying any of the appeals until such time that the President will have to be considering pardoning his son, if he plans to do that. She has yet to rule on Hunter’s Rule 29 motions, but I guess we know how she’ll rule.

Hunter’s tax case is still scheduled for September, and prosecutors continue to insist they can introduce allegations of influence peddling that have nothing to do with his alleged tax evasion and non-payment.

 

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