# DOJ/Jack Smith Investigation into Trump and Election Interference, January 6th Insurrection (Re-Indicted August 27, 2024) **URL:** \ **Category:** Politics & Elections\ **Tags:** trump\ **Created:** [November 23, 2022, 8:14pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455 "2022-11-23T20:14:01Z")\ **Posts on this page:** 20\ **Page:** 103
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [January 7, 2024, 1:22am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2044 "2024-01-07T01:22:47Z")
> [@Moriarty](#): > > the DC circuit is mulling punting on the issue If DC Circuit punts, can Trump appeal their punting of the issue to the SC, or is that the end of it until DC Circuit says it’s ripe for appeal? ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 7, 2024, 1:39am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2045 "2024-01-07T01:39:57Z")
> [@Riemann](#): > > can Trump appeal their punting of the issue to the SC, or is that the end of it until DC Circuit says it’s ripe for appeal? Maybe I’m missing something, but I don’t see that it gets to the Supreme Court until it’s first been appealed. If the DC Circuit Court of Appeals “punts”, it’s because they’ve determined that it’s not yet ready to be appealed. This jurisdiction issue is really quite fundamental. Absent rare exceptions, most issues that a defendant can raise in a criminal case must be addressed at the trial level, at which time they are _preserved for appeal_ **if** he then loses at trial. Until that time, the issue just isn’t ripe for review. As an example: Let’s say you (the generic you) are charged with burglary, and you’ve filed a motion arguing that the search of your car, where the burglary tools and spoils from the home were found, was unconstitutional. The trial judge denies your motion to suppress. You are then faced with going to trial, where the evidence is going to be admissible and used against you, and then be convicted, before you can appeal the trial judge’s ruling to the appellate court. And then you’d have to lose there before you could petition for cert with the Supreme Court (in my example, at the state level). Trump’s claim of immunity is no different. It certainly doesn’t change the trial. Either it comes in, and he faces conviction, or the trial judge was wrong, and the appellate court will vacate the conviction and order the trial judge to reconsider. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [January 7, 2024, 1:55am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2046 "2024-01-07T01:55:54Z")
So if you’re right on that technical issue, it sounds like there are two paths to the trial getting back on schedule. DC Circuit agrees with the amicus brief that it lacks jurisdiction; or DC Circuit hears and denies the appeal and Supreme Court then denies cert. In the former case, I suppose it means that if he’s convicted, there will _then_ be an appeal on immunity grounds that will go to DC Circuit and then to SC, which could still keep him out of prison until he’s in the White House? ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 7, 2024, 2:07am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2047 "2024-01-07T02:07:13Z")
> [@Riemann](#): > > suppose it means that if he’s convicted, there will _then_ be an appeal on immunity grounds that will go to DC Circuit and then to SC Yeah, I think this is what would happen. > [@Riemann](#): > > which could still keep him out of prison until he’s in the White House? Not necessarily. Most convicted criminals aren’t set free while they appeal their conviction. > [@](#): > > b)Release or Detention Pending Appeal by the Defendant.— > > (1)Except as provided in paragraph (2), the [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143)shall order that a person who has been found guilty of an[offense](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1548815702-833648272&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143)and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143) finds— > > (A) > > by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under [section 3142(b)](https://www.law.cornell.edu/uscode/text/18/3142#b) or (c) of this title; and > > (B)that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in— > > (i) > > reversal, > > (ii) > > an order for a new trial, > > (iii) > > a sentence that does not include a term of imprisonment, or > > (iv) > > a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. > > If the [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143) makes such findings, such [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143) shall order the release of the person in accordance with section 3142(b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143)shall order the detention terminated at the expiration of the likely reduced sentence. > > (2) > > The [judicial officer](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1310131767-833648271&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143) shall order that a person who has been found guilty of an[offense](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1548815702-833648272&term_occur=999&term_src=title:18:part:II:chapter:207:section:3143)in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained. > **[18 U.S. Code § 3143 - Release or detention of a defendant pending sentence...](https://www.law.cornell.edu/uscode/text/18/3143)** ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [January 7, 2024, 2:11am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2048 "2024-01-07T02:11:56Z")
> [@Moriarty](#): > > “that the appeal is not for the purpose of delay and raises a substantial question of law” Well that’s good to read, given that this will be in the hands of a judge who isn’t in Trump’s pocket. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 7, 2024, 2:13am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2049 "2024-01-07T02:13:10Z")
> [@Riemann](#): > > Well that’s good to read, given that this will be in the hands of a judge who isn’t in Trump’s pocket. Yep. Not likely to flee, my ass. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [January 7, 2024, 2:23am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2050 "2024-01-07T02:23:14Z")
Do you have an opinion on why this is such a “Perry Mason,” unique perspective? I have found Littman’s analysis to be excellent, especially as translated for a layman, so I’m tying to reconcile the notion that this was a clever, “from out of nowhere” argument with the explanation that appeals such as this are almost never heard before a verdict. IOW, why wasn’t this the first thing prosecution filed? ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 7, 2024, 2:35am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2051 "2024-01-07T02:35:49Z")
> [@Stratocaster](#): > > why wasn’t this the first thing prosecution filed? I really don’t know. I’d think the argument against this is that this is not a typical criminal defendant; maybe even the prosecution got caught up in the notion of _presidential_ immunity, and forgot to frame this as a mere citizen under indictment instead. From my link above, here’s a more detailed breakdown of the argument > [@](#): > > The brief relies on a unanimous 1989 Supreme Court opinion, Midland Asphalt Corp. v. United States, written by the late Justice Antonin Scalia. The defendant in the criminal case, Midland Asphalt, had moved unsuccessfully for a dismissal of the charges based on the prosecution’s alleged violation of grand jury rules. > > The Supreme Court held that neither it nor the circuit court had the power to hear the case on “interlocutory appeal,” or before trial. As with the vast majority of issues that may arise at trial, the court ruled, this one could be considered only after a conviction. > > The court emphasized that in criminal cases, the compelling interest in prompt trials demands that courts apply the interlocutory appeal doctrine “with utmost strictness.” Federal courts have jurisdiction over such appeals, the justices found, only if they are brought under a constitutional or statutory provision that expressly gives the defendant a right not to go to trial. > > Since the Midland Asphalt opinion, the court has identified only three categories of motions that may be considered before trial in criminal cases: motions to reduce bail and those concerning the double jeopardy clause in the Constitution’s 5th Amendment, and the speech or debate clause, which protects legislators from being “questioned” — that is, tried — at all. > > Trump’s immunity argument therefore doesn’t seem to fit within Midland Asphalt’s exceptions. It doesn’t rest on any explicit constitutional guarantee. And the D.C. Circuit Court previously held that a right based on constitutional principles such as the separation of powers doesn’t cut it. > > The Justice Department and Trump had been assuming the D.C. Circuit Court has jurisdiction based on Nixon v. Fitzgerald, which established broad but not endless immunity from lawsuits over a president’s conduct while in office. But that civil case was not subject to the “utmost strictness” standard the Supreme Court has applied to criminal trials. It also predated the Midland Asphalt opinion, which the Justice Department somewhat bafflingly failed to mention. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [January 7, 2024, 2:46am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2052 "2024-01-07T02:46:57Z")
> [@Stratocaster](#): > > IOW, why wasn’t this the first thing prosecution filed? Smith’s tactic of moving for an expedited hearing by SC might have been a preferable first choice, since it quickly kills the appeal completely rather than delaying it until after the trial. Perhaps Smith thought that motion had a good chance, and it would have undermined that motion to simultaneously argue lack of jurisdiction? I don’t know how these things work, is introducing this argument by amicus brief after the SC motion failed seen as more acceptable than the prosecution switching tack? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 7, 2024, 4:19am UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2053 "2024-01-07T04:19:52Z")
> [@Moriarty](#): > > From my link above, here’s a more detailed breakdown of the argument Thanks very much for explaining this issue. ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [January 9, 2024, 12:45pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2054 "2024-01-09T12:45:05Z")
> [@Joey\_P](#): > > you’d think he’d want to keep everyone for putting more energy into poking around at his connections with Russia. Earlier, I mentioned how stupid I thought it was for Trump to suggest that Russia was intereferring in the election, but for Biden’s advantage and suggested that maybe he shouldn’t bring that up since even a cursory look into some of his claims would likely point right back at him. Then I followed it up with this: > [@Joey\_P](#): > > Wait for the shit show that’s going to happen as soon as the Epstein documents are unsealed. He’s going to have to deal with fallout from that as well. And here’s where we are today. Honestly, what is going on in his head that he thought this tweet was a good idea? [![](https://i.imgur.com/d0XIkyY.jpeg) ](https://i.imgur.com/d0XIkyY.jpeg) Even his commentary is stupid. I’ll grant that a former president of the United States might not be aware that Branson and Prince Andrew are outside of the DOJs reach, not being residents of, or living in, the United States. But surely he must know that former President Clinton is immune from everything, being a former president. But jokes aside, either Clinton is immune to anything he did in office or Trump is guilty. If Trump wants to skate, he really should leave the Clintons alone. ---
**Author:** ![rocking\_chair](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocking_chair/32/2918_2.png) [@rocking\_chair](https://boards.straightdope.com/u/rocking_chair)\ **Post date:** [January 9, 2024, 2:52pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2055 "2024-01-09T14:52:50Z")
the arguments have started in dc. cnn and msnbc are carrying the audio live. right now mr sauer is arguing for mr trump on immunity. the three judges are childs, pan, and henderson. ---
**Author:** ![Skywatcher](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skywatcher/32/254_2.png) [@Skywatcher](https://boards.straightdope.com/u/Skywatcher)\ **Post date:** [January 9, 2024, 2:58pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2056 "2024-01-09T14:58:38Z")
> [@Joey\_P](#): > > what is going on in his head [Drugs?](https://okmagazine.com/p/donald-trump-jr-accused-drugs-slurring-words-podcast/) ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [January 9, 2024, 3:01pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2057 "2024-01-09T15:01:31Z")
I don’t know that it changes anything, but it wasn’t until well after I posted that, that I realized it was Jr. ---
**Author:** ![rocking\_chair](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocking_chair/32/2918_2.png) [@rocking\_chair](https://boards.straightdope.com/u/rocking_chair)\ **Post date:** [January 9, 2024, 3:15pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2058 "2024-01-09T15:15:34Z")
now on to mr pearce for team u. s… mr sauer did state that should they lose this appeal, they will request the entire bench, and then supreme court appeal. ---
**Author:** ![MulderMuffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldermuffin/32/2862_2.png) [@MulderMuffin](https://boards.straightdope.com/u/MulderMuffin)\ **Post date:** [January 9, 2024, 3:30pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2059 "2024-01-09T15:30:27Z")
> [@rocking\_chair](#): > > mr sauer did state that should they lose this appeal, they will request the entire bench, and then supreme court appeal. Well, of course. The point is to delay the trial ever happening. Winning on the immunity motion would just be a happy fringe benefit. ---
**Author:** ![rocking\_chair](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocking_chair/32/2918_2.png) [@rocking\_chair](https://boards.straightdope.com/u/rocking_chair)\ **Post date:** [January 9, 2024, 3:45pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2060 "2024-01-09T15:45:00Z")
team trump took an interesting tack today. they argued that a president can not be charged with something unless they have been impeached and convicted for the crime. the judges are pushing on that. i’m not sure if we are looking at a barrel of monkeys or a can of worms. ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [January 9, 2024, 3:47pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2061 "2024-01-09T15:47:31Z")
> [@rocking\_chair](#): > > the judges are pushing on that. pushing which way? For it or against it? ---
**Author:** ![rocking\_chair](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocking_chair/32/2918_2.png) [@rocking\_chair](https://boards.straightdope.com/u/rocking_chair)\ **Post date:** [January 9, 2024, 3:50pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2062 "2024-01-09T15:50:31Z")
it sounds like against. they seemed hhhmmm, a bit, ah, incredulous at this argument. team trump went with completely different argument that what was in the brief. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 9, 2024, 3:51pm UTC](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455/2063 "2024-01-09T15:51:40Z")
> [@Joey\_P](#): > > pushing which way? For it or against it? I’d say largely against. But it’s always hard to tell with Judges questions. Lots of attempts to get Trump’s lawyer to answer the hypothetical of: “if he were impeached and convicted, on the same factual allegations, could he then be prosecuted?”. Trump’s lawyer didn’t really want to concede that, but ultimately if there argument hinges on conviction by the Senate then you sort of have to concede the hypothetical. Otherwise you have to concede that official acts by a sitting President can _never_ be prosecuted. Which is a pretty terrifying thing to concede. And yes, the prosecution team seemed a bit taken aback that the oral arguments didn’t seem to track with the submitted brief. ETA: There was also some discussion of the fact that one of the primary reasons he wasn’t convicted was because a number of Senators felt like he would and should be prosecuted after he was out of office. Not that there beliefs would necessarily overrule the Constitution, but it points out that there are lots of reasons why the Senate might not convict even if the facts support conviction and removal from office. [Previous page](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455.md?page=102) [Next page](https://boards.straightdope.com/t/doj-jack-smith-investigation-into-trump-and-election-interference-january-6th-insurrection-re-indicted-august-27-2024/975455.md?page=104)