DOJ/Jack Smith Investigation into Trump and Election Interference, January 6th Insurrection (Re-Indicted August 27, 2024)

Politics & Elections
2384

This case, like nearly every other Trump case, is in a standstill. Here, we are awaiting the Supreme Court’s ruling on presidential immunity. And, as I recall, the timeline for that decision is the end of July.

Presuming that the court does not just issue some outrageous fiat that a president can interfere with his re-election without consequence, the July decision will then likely return the case to the trial court at that time.

The Manhattan trial will be over by then, but we can figure that the Florida classified docs case will still be in limbo, and the Georgia appellate court will still be delaying that state’s prosecution.

Meaning, the calendar should be wide open for both prosecutor and defendant to be available to try this January 6th case in the fall - say, September through November,

I could live with that,

2385

Considering that the Supreme Court seems to answer directly to Donald Trump, I would imagine if they can’t save him with the absurd immunity argument they will just immediately take up his next appeal when the judge makes a face at him or does something else that hurts his feelings, such as trying to move the trial along in an orderly fashion.

2386

Not even close-

First of all they didnt overturn the 2020 election in his favor- as he wanted.

Next-

WASHINGTON — Since Donald Trump left office in January 2021, the former president has not fared well at the Supreme Court, despite its conservative majority, including three justices he appointed.

When Trump tried to prevent prosecutors from obtaining his financial records, the court rejected his request.

When Trump attempted to stop a congressional committee from accessing White House documents from his administration, the court rebuffed him.

When Trump asked for a special master to review classified documents seized from his Mar-a-Lago residence, the court turned him away.

When Trump sought to stop his tax returns being disclosed to House Democrats, the court refused to intervene.

The court’s rejection of Trump in those cases showed that the justices had “remarkably little interest in intervening in any of the cases about former President Trump’s personal behavior," said Steve Vladeck, a professor at the University of Texas at Austin School of Law.
Trump built the Supreme Court's conservative majority, but it doesn't always rule in his favor

The immunity argument- as long as it is limited to things that the president may legally do while in office- is not ridiculous. In General, the Dept of Justice will not prosecute a president while in office.

2387

Moderating:

This is a discussion for another thread. Please drop it in this one. Thanks.

2388

As expected, the GOP wants to re-open and tamp down the findings of the Jan 6th committee, doubtless to make Trump look better.

2389

msnbc has “breaking news” that the ruling on immunity will arrive on monday 1 july.

2390

And then they run off to their break?

2391

Yes, right after they tell us that trump has immunity. The rule will apply only to trump and maybe future republicans.

2392

Here’s the official decision on immunity:

2393

My read would be that, in general, this decision will throw out evidence of the conspiracy which shows Trump’s actions inside the DOJ. Other than that, maybe there will be a few things that are barred from court but possibly or probably not much. But, certainly, the trial court needs to run through all of the different arguments pro- and con- of anything and document why they decided that something was or wasn’t considered to be covered by immunity.

Probably, the most messy point will be the question of how the President and Vice President interrelate.

I think the way that the (concurring) justices view it, probably most or all of the communications between the President and VP should be private and unreviewable, but they’re willing to see the arguments for something else. Personally, in reading the decision (p16-32), I feel like they unintentionally made a good case for the VP to be considered (from a criminal jurisprudence standpoint) a co-equal entity of the President, itself. And in that regard, while the communications could arguably be considered completely privileged, I’d personally view it as the complete and total prerogative of the VP to dish it all out and make it public information as the President himself has right to. If the co-equal thinks that his partner deserves to get the hammer, then who can really question his prerogative? Though, maybe absolute immunity precludes the executive (or a co-executive) from being questioned, regardless of the personal desire to lay it bare?

In any case, maybe there’s an avenue there if Pence is willing.

But, for the most part, I feel that while it may be that Trump gained time by going to the Supreme Court for this decision, it effectively gives Jack Smith and his team, plus the lower courts, a blueprint for how to structure a case to prosecute the President in a way that will survive Supreme Court review.

So where it may have been that Trump would have been successfully prosecuted, there would have been so many flaws in the trial that the whole thing would have turned out to be turned back to the lower courts for a retrial. By the time it would take to get to that point, the government might decide that it isn’t worth it, or Trump may have received some pardon from some President who didn’t want Trump bringing his followers out for the vote during election season.

With this decision, it’s a lot more likely that, if Trump is successfully prosecuted, that he stays that way and he genuinely goes to prison.

My sense would be that the justices have seen most of the public evidence and they’re tailoring things so that the decision really doesn’t have any significant impact on the prosecutability of Trump for the false electors scheme or most of it. They’re fine if he goes to jail.

The big question would be, of course, whether Trump is able to gain office before his trial could begin.

2394

I don’t know how anyone could read the opinion and come to that conclusion. A “decision for the ages,” my ass.

2395

I’m wondering whether – say – testimony from the Jan 6 Committee would skirt some of this decision’s more ominous obstacles.

Wasn’t Trump adviser, Eric Herschmann testifying before the committee when he gave us these gems:

“What they were proposing, I thought, was nuts,” Herschmann said of the claims of voter fraud pushed by some of Trump’s attorneys. “Are you out of your effing mind? You’re completely crazy,” Herschmann claims he said to Trump attorney John Eastman about the so-called Eastman memos.

“Get a great f’ing criminal defense lawyer. You’re going to need it,” Herschmann testified he told Eastman on the phone of Eastman’s plan to overturn the 2020 election results, “and then I hung up on him.”

We have a helluva’ lot from the J6C, no? And how would today’s SCOTUS ruling bar what’s already well documented in the public record?

[I’m not saying it couldn’t. I simply can’t think of how…]

There’s the legal concept of Fruit of the Poisonous Tree. The remedy to that issue is generally to find another way to get the same evidence.

ETA: also, Herschmann, IIRC, was not White House Counsel. He was a special adviser to the President. Is it possible that the latter doesn’t get the same protections as the former under this ruling?

ETA2: IIRC, Fani Willis’s team met with both J6C representatives and White House Counsel’s office to discuss the Fulton County RICO case. In my scenario, it’s possible that the former gets admitted while the latter doesn’t.

And it’s equally possible that the two sources were roughly equivalent to one another.

I hope.

2396

I’d say that the biggest loss would be internal communications from the DOJ to Trump stating that they were unable to find any evidence of fraud. But, likewise, it would exclude Jeffrey Clark’s letter saying that there was plenty and lots of voter fraud.

The decision can’t and wouldn’t cover Trump’s lost 50+ lawsuits over voter fraud. Giuliani wasn’t part of Trump’s administration in any formal capacity so, likewise, his admissions of lying about fraud would be evidence. Statements from state officials, telling Trump that the elections were fair and honestly run would be admissible.

Trump still has no reasonable basis for believing in fraud and, just as Smith can’t claim that the DOJ was telling him that it didn’t exist, Trump can’t claim that the DOJ or any cabinet member was telling him that voter fraud was real. There’s not a single thing that the man can point to as a basis for his argument except personal desires.

2397

For the DOJ/Jack Smith case, practically speaking, this ruling means delay, delay, delay. (Shocker!) The GOP Six SCOTUS Justices gave no information on what is an official act and what is a private act. The lower court will have to rule (with all the time that will take) and then Trump can appeal and then it has to go back to SCOTUS.

A big win for Trump.

And also a HUGE win for the Unitary Executive/Imperial Presidency advocates. This goes a long way to codifying the Imperial status of a President. But I suppose that’s a separate thread.

2398

Technically, they stake out three general areas of officialness and put stuff into those relative buckets, while noting that nothing is really cut and dried because you’re often intercommunitng about different topics with different people for different purposes. Given (according to them) the quick turnaround time on the decision and the fact that they’re an appellate court more than they’re a trial court, there’s a limit to how much they can say when the trial court entirely skipped by all of the nitty gritty analysis that is merited.

You can’t comment on what wasn’t provided.

The trial court now knows what hurdles if needs to clear to pass review.

Which is always true in all legal matters.

2399

There is no mystery about what acts must be sorted into the ‘degrees of officiality’ buckets. The acts are enumerated plainly in the indictment. Nothing would have stopped SCOTUS from specifying in a manner clear enough to save the ‘back to the lower court then back to us’ rigmarole—even if Gorsuch DID want to write a Decision for the Ages.

2400

The matter isn’t “acts”, it’s communications and evidence. This is a question of which particular items of evidence are permissible in trial.

Secrecy within the cabinet is not a new limit and it was, likely, improper for the lower court to allow inclusion of internal communications at the President’s level, to his direct employees, into the case.

That doesn’t feel like we’ve learned some new thing about the universe. That’s always been true.

The President does have a duty to ensure that the election is run with integrity and, to the extent that he can make even a passing argument for why he did some questionable undertaking, that would usually allow the matter to go forward without scrutiny of his motivations and thus all communications about the matter would be off limits.

This is, again, neither novel nor unexpected. It’s been the official stance of the Supreme Court since before I was born on all variety of matters. It doesn’t mean that those actions stood, but the cabinet’s veil of secrecy went unpierced and the laws and acts had to be taken down for other reasons and based on other evidence.

2401

Oh, my. Communications and evidence are created by acts. A communication or a piece of evidence created by an “official” act differs from a communication or a piece of evidence created by a private act.
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To make this argument respectable, you would have to assert that anything and everything a President does that is related to an election can be defined as performing “a duty to ensure that the election is run with integrity.” For example, you’d have to successfully assert that asking a Governor to “find” votes for you is part of said “duty to ensure that the election is run with integrity.”

Good grief.

2402

In the end, only a Judge can find that POTUS committed an illegal act and POTUS can respond by having the judge legally killed.

Good going, guys. And to think that this country was destroyed for the benefit of Donald Trump. The future will boggle.

2403

Generating a specific number of votes is, clearly, not an official act of the President. Ordering more investigations, yes it is. Was Trump asking for votes or was he asking for investigations and just “making the jokes” while doing so?

The trial judge will need to show that they considered the question and then, either, determined that the President was clearly asking for votes and so the information is fit to be included in the trial; that they’re not confident, and the jury will need to take a note about Presidential immunity and consider that as part of considering the evidence; or the trial judge could decide that the information must be excluded from the trial. Personally, I’d guess that it will be the first or second option for that particular tidbit and that either decision would be liable to survive review.

But there’s no harm in documenting the decision and building a case history for future Presidential prosecutions.

Crossing t’s and dotting i’s doesn’t give you different text at the end of the day, it just gives you a result that is harder for anyone to complain about.