Normally, the U.S. Attorney’s office and the Justice Department do not make major moves against a politician within the last 60 days of an election but Jack Smith’s investigation is anything but normal and Donald Trump is, well – an ex-president and Donald Trump. Thus, Smith is about to file a 180 page brief (!) that will serve as a near “mini trial” within the 60 day time period.
This was all brought on by the Supreme Court’s decision in the presidential immunity case in which – unsurprisingly, the SCOTUS ruled that a president enjoys broad immunity for any act relating to the “core powers” of the presidency. The case came with a remand to the district courts requiring them to hold a hearing which would examine the evidence relating to the actions taken and the evidence – and then arguments about whether the actions were protected core actions or outside the scope of his office.
Courts are good at this. A lot of federal and state court cases revolve around whether law-enforcement’s actions fit within a “qualified-immunity” rule and whether the actions taken were outside the generally accepted job of the officer or agent. The decision is determined in motions and evidence first, before trial. Federal courts and some state courts have a lot of experience in doing so.
So it’s not shocking that Jack Smith would have to prove that Trump’s possible crimes were not official acts. Now we are at the point where Smith will soon file that 180 page brief, mostly available to the public (perhaps not all) just prior to the election. It will function as a mini trial on paper. Rawstory brings us the quotation from MSNBC’s Network legal analyst Lisa Rubin
“Jack Smith is going to take Judge Chutkan on a tour of why they believe, based on the context and circumstances, they can get around the Supreme Court’s immunity ruling and hold Donald Trump responsible on all four of the charges that are pending.”
Kind of funny. This is the exact ruling that Trump waved around as a big win at the SCOTUS but now when held to it – the tons of evidence motion-hearing, he’s now pretty upset that the process involves such a long brief with a lot of evidence. He objected to the page extensions in the brief. Good win for Jack Smith.
But there are a couple of problems for Smith in bringing this motion. First, quite obviously, Donald Trump seems to be way way way outside his official office in many of his actions in the post-2020 election. The fake electors’ scheme, the shakedown of people at DOJ, and – of course, whether January 6th was planned and Trump’s responsibility. That is a lot of stuff to wade through.
Making matters much more difficult on Smith is a rather clever and unexpected argument in that Trump asserts that he – as president – took all those actions to ensure a free and fair election. I know. I know. I know. It’s really tough to fit January 6th into the “free and fair election” thing until you remember that Trump himself didn’t storm the Capitol, though not for lack of trying if the Secret Service hadn’t held him back. Shaking down DOJ or fake electors scheme might be a bit more amendable to the “outside the core powers” matter.
Smith will argue that these acts were all for the Trump campaign and not as president.
But I think it goes even deeper. At each point, Trump had others doing most of the acts for him. It is tough to pin the actual crime on Trump – the fake electors scheme being the most obvious one. So Trump’s argument, coupled with the fact that others were their own free actors, is going to be tough to punch out.
Smith can and likely will do it. After all, in the end, a jury decides guilt or innocence. The question as to whether they were official acts will be answered and Trump will have to prove innocence or guilt at a trial. In close calls in other federal cases, the judge will often teeter on simply letting a jury decide the matter.
Either way, we’ll see. Jack Smith is a better lawyer than 99% and he seems to have a lot to say. The 180 page limit might be more rare than charging a president.
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