I suppose that makes sense; thanks for the explanation.
Still, it seems ike we know less about the disposition of this particular case after the Court’s ruling than we did before. Rather than a superseding indictment, why not let the original case continue, let Trump’s lawyers challenge particular parts of it, and let the Court rule on those challenges? Maybe that’s an invitation to Trump’s team to stretch out the proceedings as long as possible, but they’ll do that anyway.
I think Jack Smith chose not to go with the default course which would have been a hearing in the original indictment on whether everything in the filing was covered by immunity and trying to figure out some recourse for things that were found to be covered. Trump is going to stretch things out at as long as possible either way, but that way probably would have been even longer.
Of course, big picture the court doesn’t actually have hard rules on how broadly they need to rule. The scope of their rulings is always a choice, and intentionally or not the way they both scope and time their final rulings as well as all the procedural stuff has turned into something that lots of people have been able to exploit to do what they want even if they have little to no hope of the courts ultimately finding their actions legal.
If I were Jack Smith (and/or if I actually knew anything about the law), I might prefer to err to the conservative.
It would be nice to assume that the Court (or SCOTUS, if/when this case gets to them for realz) would surgically excise those things it found inappropriate, and then rule fairly and objectively on the rest.
But I think it’s only too possible, if not likely, that they’d throw out the baby with the bathwater, deciding by using a very broad brush (broadsword, not scalpel).
I think Smith may have wagered that the cleaner he played … the more closely he hewed to the (new) line, the better chance he’d have of a decision in his favor, rather than have a ‘frustrated’ court rule against him rather than parse too many thornier pieces that could have been excluded.
Leaving a bunch of legal “junk” in – IMHO – risks a Court that doesn’t patiently and methodically reject the junk, and then decide on what’s left after.
ISTM that the only thing Smith risked with the Superseding Indictment was … making more work for him and his team.
That seems like the safe guess. Why bother spending the time fighting over every little thing if it’s fairly clear that you’re going to lose certain parts of it? You may as well cut out the middle man and limit the fighting to the parts that are truly more contentious.
And the award for most metaphors mixed in a single sentence goes to… 
I don’t seem to have any control over that, either
It would force the Supreme Court to suck it up, put on their big-girl panites, nail their colors to the mast, and make an actual ruling on the case, rather than sit around with a thumb up their ass and kick the can down the road.
The great Mixed Metaphor Epidemic of 2024.
And I’m Patient Zero. Lovely
[/hijack]
Assuming a conviction, the case is guaranteed to get SC review and, likewise, it’s almost certainly guaranteed to shrink a bit under that review - either getting remanded to a retrial or losing a count (e.g. Obstruction of Official Proceedings) - before sentencing.
They’ll have to decide. That’s not a concern. But the sloppier the case is that comes to them, the more likely that a retrial is needed. As it is, Smith seems to be practicing a bit of give and take. If he wants to get the case through a GOP majority court that needs to maintain a semblance of not being a part of the Deep State, then he needs to take clear their message that he shouldn’t include the DOJ stuff. Likewise, he needs to give them some stuff that they can trim out once he puts the case in front of them, so that Trump gets some leniency and a sense of deference to the Executive is preserved.
Trump is likely to be convicted for Conspiracy to Defraud the US and Conspiracy Against Rights. He’ll have the charges for Obstructing and Official Proceeding struck down, and go through to sentencing without a retrial.
Personally, I’m okay with that.
This got a Supreme Court review before it even went to trial. Havning had that review, it doesn’t seem like we’re any closer to a resolution than we were before.
A new problem is a move forward.
“Any time I had a problem and I threw a Molotov cocktail…Boom! Right away, I had a different problem.”
Given a reasonable driver, a new problem is a move forward.
It’s true SCOTUS provided very little specificity, but they provided at least some. Smith’s indictment, and case, had elements that would have been fatal to the prosecution. Admitting evidence that should not have been isn’t necessarily fatal, not if it’s minor and innocuous. None of the Trump ratfuckery was, however.
SCOTUS may yet discern fatal flaws with their superpowers, but some of the existing ones were already clear, given their partisan, evil immunity decision. Smith may not like it, but he has to live with it.
Over at Lawfare, there’s a detailed rundown which is too long to summarize, but which they describe as “an analysis of how the superseding indictment differs from the original one and an analysis of what the changes suggest about Smith’s approach to litigating the case.”
If you do podcasts, there is also a freewheeling roundtable discussion featuring some of the same contributors to that article:
I feel like this statement normalizes what SCOTUS has done. I think it’s a mistake.
What SCOTUS did was take the opportunity to make a massive, gratuitous power grab for themselves to protect exactly one person – or whomever they may choose to protect in future.
In all our history, the foundational law of the land has been that no person is above the law. Period. Full stop. We have successfully sorted out what breaking the law means through proceedings in regular trial and appeals courts. When there has been a difference of opinion on what the law means by lower courts, SCOTUS has stepped in to make a ruling – within our foundational principle that no person is above the law.
That’s not what they did here. They gave themselves the power to determine what is and what is not an official act, something that has, for all our history, been immaterial to determining if certain acts fall within the definition of what is criminal. Up to now, it’s been beside the point. This is why Nixon was afraid of obstruction of justice charges had he failed to turn over the Watergate tapes. Now, according to the new SCOTUS ruling, that would be an “official act”.
It’s a dangerous, legislate-from-the-bench ruling. Anyone who thinks that trying to overturn the lawful results of an election by any means is an “official act”… well, I’ve got a bridge for sale.
It may be that Jack Smith charged Trump with counts in his original indictment that would have been difficult to prove. Or maybe not. We’ll never know. Prosecuting attorneys are allowed to allege such charges, and juries that disagree with them are free to find “not guilty” on such charges. That’s how our system is meant to work. Or… it was.
Not my intention (please note my use of “evil” and “partisan”). If it needs confirmation, I agree that the SCOTUS decision was an egregious abuse, one that eats at the foundation of our democracy. History will judge this court extremely harshly.
But my point was that this is the hand Jack Smith has been dealt, in my response to some of the posts questioning the need for a superseding indictment. The charges survived. But not every piece of the case did.
ETA: Including in evidence conversations with DOJ officials, for example, would have sunk the prosecution’s case. To be crystal clear, I hate that this is so, but here we are.
You’re right on this point, and I am certainly aware you are no fan of this SCOTUS. It was just as I read your post as a stand-alone that it struck me as normalizing. I am simply terrified by the implications of this ruling, and the willingness of this SCOTUS to overturn centuries of precedent.
ETA: As for why Smith felt the need to file a superseding indictment rather than take a razor to his existing one, I think he simply did it to keep things clean. Rather than allow the Trump team to pick piecemeal at what was left, repeatedly claiming that various things left in still fell within the “official act” exception, he eliminated as many of those as he could without compromising the fundamentals of his charges.
It will force this SCOTUS to remove the mask further if they continue to declare obvious criminal acts by a candidate to be “official” just because that person occasionally sat his ass at the Resolute Desk during his term.
We are in sync!
We are. 