Jack Smith Claps Back

Time to call SCOTUS's bluff.

Jack Smith is so back.

On Monday Special Counsel Jack Smith briefed his appeal to the Eleventh Circuit explaining all the ways that Judge Aileen Cannon was disastrously, hilariously wrong to dismiss Trump’s stolen documents case.

Smith followed up Tuesday with a superseding indictment in Trump’s election interference case. Guess that’s what he meant three weeks ago when he requested a brief extension of time to file a status report “to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States.” Did any reporters in DC spot the special counsel presenting evidence to a whole new grand jury, or did they all skip town in August when the city becomes a fetid, mosquito-plagued swamp? Relatable!

The new indictment largely tracks the original one, with several important differences. The four counts are the same, charging the former president with obstruction of an official proceeding under 18 USC § 1512(c)(2), conspiracy to defraud the United States under 18 USC § 371, conspiracy to obstruct an official proceeding under 18 USC § 1512(k), and conspiracy against “the right to vote and to have one’s vote counted,” under 18 USC § 241.

Smith tweaked paragraph 93 to harmonize it with the Supreme Court’s ruling in Fischer v. US that — contrary to the plain language of the statute — obstructing an official proceeding under § 1512 must involve “impair[ing] the availability or integrity … of records, documents, objects, or other things used in the proceeding.” Because apparently if you do a coup but don’t also step on a piece of paper, it’s not a crime. The superseding indictment now alleges that, after Trump’s mob stormed the Capitol and drove Congress into hiding, “staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment.”

But the main changes are an attempt to comply with the immunity ruling, in which the six conservative justices squandered the remainder of the Court’s legitimacy to help a deranged orange criminal get away with a nationwide crime spree and a coup. In Trump v. US, the majority held that presidents enjoy absolute immunity for their official acts, and those official acts cannot be used as evidence against them, even when the charged conduct is unrelated to their official duties. By going to a new grand jury and securing a “clean” indictment based only on evidence that complies with the immunity ruling, the special counsel hopes to salvage his case.

Around the edges, that means that some of Trump’s statements made in an arguably official capacity have been removed. So, for instance, Smith excised a White House speech on November 5, 2020, in which Trump falsely claimed that batches of fraudulent ballots appeared in the middle of the night in Detroit. But a private call from the Oval Office on November 20 with RNC Chair Ronna Romney McDaniel and the leaders of the Michigan Senate and House, who told him that he had simply lost the state, stayed in.

The call to Georgia Secretary of State Brad Raffensperger in which Trump and his chief of staff Mark Meadows urged the local politician to “find 11,780 votes” stayed in, although Trump insists that he was doing his official job of ensuring that state elections proceeded according to law.

Smith was forced to exclude Trump’s effort to leverage the Justice Department to announce sham investigations of vote fraud in the swing states as a pretext for Republican legislators to claw back Biden’s electoral votes. The section captioned “The Defendant’s Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes With Defendant’s” got axed in its entirety.

This is excellent news for Jeff Clark, AKA Co-Conspirator 4, the former Justice Department official who was so batshit crazy that the entire senior leadership of the DOJ, along with the White House Counsel’s Office threatened to quit if Trump made him acting AG. But it’s less good news for the jury, who won’t get to enjoy a parade of Trumpland lawyers testifying how nuts Clark was, capped off with Rich Donoghue snarling “You’re an environmental lawyer. How about you go back to your office and we’ll call you when there’s an oil spill?”

Clark celebrated by likening Jack Smith to Lavrente Beria, while tut-tutting that the prosecutor should have dismissed the charges against Trump for the good of the country after the assassination attempt. Which makes us feel marginally less bad about including this picture of him in his Underoos the morning the feds raided his house.

Co-Conspirator 4 is gone, but the other five Co-Conspirators got some spiffy new language making clear that they are civilian crime-doers, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” Rudy Giuliani, Sidney Powell, and John Eastman are described as “private” attorneys, and Co-Conspirator 6, who is widely believed to be campaign consultant Mike Roman (whose lawyer ferreted out the relationship between DA Fani Willis and special prosecutor Nathan Wade), is now “private,” too.

Interestingly, the pressure campaign against Mike Pence stays in, despite some extremely skeptical language in the immunity ruling itself. The Chief Justice conceded that Pence acted as a member of Congress, not the executive branch, when he presided over the electoral count certification on January 6, 2021. But the Court warned that “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.”

“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,” the Chief went on, concluding that it was “ultimately the Government’s burden to rebut the presumption of immunity.”

Smith has taken the Chief Justice at his word, arguing that many of Trump’s conversations with Pence, and certainly those that involved John Eastman browbeating him to throw out swing state votes, had nothing to do with Pence’s job in the executive branch.

“The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election,” Smith argued. “All of the conversations between the Defendant and Vice President described below focused on the Defendant maintaining power.”

Those allegations are framed in such a way as to try and tee up a more deferential standard of review to Judge Chutkan’s findings during during Trump’s inevitable appeals. A trial judge’s factual findings, such as ascertaining what Pence actually did on January 6th, can only be overturned on appeal if they are clearly erroneous. Judge Chutkan’s legal analysis, however, is subject to de novo review in the DC Circuit (and, likely more relevantly, the Supreme Court).

In other words: the appellate courts must defer to Judge Chutkan’s analysis of the facts, but is free to revisit how those facts apply to the law. Where that dividing line winds up is yet to be seen.

Meanwhile, in MAGAworld, the usual suspects are flapping their yaps.

“This guy is totally out of control,” tweeted Senator Josh Hawley, a former law clerk for Chief Justice Roberts who sure as hell knows that’s bullshit. “The Supreme Court was clear - but now Harris & Co ignore the law to try to jail Trump. Totally corrupt.”

“Jack Smith's indictment against Donald Trump is blatant election interference,” huffed podcaster Ted Cruz, who once clerked for Chief Justice William Rehnquist.

Over on Truth Social, Trump screamed nonsense into the void.

Then he consoled himself with a dozen Qanon memes and a blowjob joke about the only two women who have ever been major party presidential nominees, signaling what the New York Times called a “willingness to continue to shatter longstanding political norms.” (No link because DO NOT ENCOURAGE.)

Trump is also whining that the DOJ is barred from filing a superseding indictment this close to an election:

It is DOJ policy that the Department of Justice should not take any action that will influence an election within 60 days of that election – but they just have taken such action. Voting starts on September 6th, therefore the DOJ has violated its own policy – Election Interference. All of these Comrade Kamala/Biden Hoaxes should be immediately DISMISSED!

That makes complete sense … or it would if the Justice Department’s internal Election Year Sensitivities policy provided privately enforceable rights, rather than general guidance to prosecutors. And if the clock started from the first day anyone can vote, not the date of the election itself. And if this were a new indictment, not a pared down version of an old one. And if the rule applied to the federal judiciary, which ordered Smith to proceed with his case once it was remanded from the Supreme Court. But since none of that is true, you can safely assume this is nonsense.

TL, DR? Special Counsel Smith knows that his case disappears if Trump wins in November, so he’s calling the Chief Justice’s bluff.

If the Court’s conservatives really meant it when they said “for a President’s unofficial acts, there is no immunity,” then they should have no problem allowing the “analysis … best left to the lower courts to perform in the first instance” to proceed. Trump can make his immunity claims before Judge Chutkan and argue that leaning on state officials and his own vice president to commit crimes was part of his official presidenting job — an argument he’s almost certain to lose. If the justices didn’t mean it, they can humiliate themselves and swoop in to save that loser again, making the very strong case for Supreme Court term limits, a binding code of judicial conduct, and 13 justices for 13 federal circuits.

Trump and Smith are due to file their joint status report on Friday. Be there, will be wild.