Jack Smith filed his motion to explain his rationale for continuing the prosecution of Donald Trump for the events of January 6 in light of new immunity protections defined for Presidents by the Supreme Court. Judge Tanya Chutkan reviewed Smith's motion and Trump's counter-motion over the weekend and decided to release Smith's redacted version to the public for review. The redacted motion can be viewed at this link:
https://www.washingtonpost.com/documents/3e401ee1-1a33-4961-8b15-94348d010a5f.pdf?itid=lk_inline_manual_4Other commentators have been labeling the document as a bombshell. My take is that is is actually NOT a bombshell, for one reason. The public knew Smith likely had vast amounts of damning evidence against Trump and his eventual co-conspirators. That's not a bombshell. If there's a bombshell to this document, it is the fact that Smith has had to alter very little of the entire case in light of the immunity ruling. Only one actor disappears from the indictment and possibly two bits of evidence disappear from the case. But literally dozens of names and dozens of actions remain in the case while Smith makes the argument that immunity plays no role in protecting these actors or evidence of their actions.
Dismantling Immunity Claims
Section I spells out many of the events Smith plans on referencing in the actual trial and provides eighty one double-spaced pages of information regarding specific actions and conversations between various parties. More on some of these details will be discussed later. Section II of the document is really the heart of the filing Smith was obliged to provide to the court and outlines his rationale for why charges and related evidence in the case should remain and go to trial. Section III then itemizes the different categories of actors and communications to provide more explicit justification for why they remain in the case.
The legal framework section starts with this observation:
These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct.
Smith states that the only actions in the original indictment that explicitly meet the criteria established by the USSC for immunity involved communications between Trump and Jeffrey Clark and between Trump and some other DOJ officials. So those indictments were dropped from the case.
Smith then states that everything else in the indictment -- both charges and evidence -- still remain. Specifically:
- Trump's interactions with Pence as VP are not protected by immunity because the VP has no actual power in the electoral college process and his actions in the process are unrelated to Presidential functions and powers
- Trump's interactions with Pence as a candidate are not protected by immunity because campaign activity itself is not related to the exercise of power of an office
- interactions between Pence's staff member P58 and CC2 (Eastman) were unofficial acts outside the protection of presidential immunity
- Trump's direct interactions with various state officials were unofficial acts outside the protection of presidential immunity because the President has zero authority over the administration of any elections
- Even if the court somehow determines these contacts with state officials were official, the prosecution can rebut the presumption of immunity
- Trump's public speeches and social media communications were unofficial
This companion document to Smith's superseding indictment in light of the USSC immunity ruling reflects a few key outcomes for the actors involved and the country.
First, Jack Smith concisely argues that the Supreme Court's immunity ruling has virtually zero impact on the original indictment filed in the case. The only two elements Smith removed from the case based on that new immunity ruling involved conversations Trump had with Jeffrey Clark in the DOJ and other conversations Trump had with DOJ officials. That's TWO elements of the case out of literally dozens of actions involving six co-conspirators.
Second, Jack Smith lays out an argument that all of the remaining actions charged in the indictment and all of the evidence at hand related to those actions are unprotected by the Supreme Court's synthesized presumptive immunity protection because none of the actions taken by Trump involve his official duties as President and all of them explicitly involve responsibilities of state governments that have nothing to do with the President. In the same train of thought, Smith goes further to explain that even if the judge rules these areas of activity still qualify for a presumption of immunity, he can confidently argue any argument for immunity can be rebutted.
Those two takeaways suggest other eventualities likely to come about as this process iterates through the next phases of litigation. First, given Smith's conclusions that virtually no aspect of the core case qualified for the John Roberts Get-Out-Of-Jail-Free card treatment, one could argue that the Supreme Court's involvement in this case served no actual legal purpose and only served to benefit Trump by simply delaying the inevitable and giving Trump a chance to possibly win re-election before the trial reached a crucial tipping point that could further jeopardize Trump's freedom.
Of course, after Judge Chutkan reviews the Smith motion and Trump's counter-motion and rules on it, Trump's team will immediately appeal any decision to go forward with the trial. Since the basis for appeal involves claims of immunity to AVOID prosecution in the first place, this appeal will freeze the criminal trial (AGAIN) until the appellate court rules, just like the original appeal. And just like the first go around, if the appeals court rules in favor of the prosecution, Trump will immediately appeal to the Supreme Court, freezing the actual trial (AGAIN) until they rule. At that point, the Republican majority on the Court will have another bite at the apple, having a clear roadmap on the sane arguments already made to dance around them to find yet other rationalizations for maintaining their doctrine of immunity.
The most disconcerting takeaway from this revised indictment and motion regarding actions and evidence related to "official actions" is that the worst lesson has probably already been learned by future corrupt leaders. The next time you want to go criming, ensure you've appointed enough criminals IN YOUR CABINET to accomplish your goals and use them for the wet work. Sure, the Supreme Court has maintained immunity does not attach to non-existent powers or illegal acts but the Supreme Court has also essentially established a default "taint" for any evidence of immunized conduct, preventing its use in proving crimes NOT protected by immunity. If the only evidence of a crime exists in Administration controlled channels, a President can simply claim communications related to those crimes are related to "core official acts" and prevent their use in court or even discovery. This can drastically limit the availability of evidence to use in prosecuting a corrupt President for acts unprotected by immunity.
Political Takeaways
This filing obviously has important legal impacts on this case and the conduct of future Presidents. It also provides a reminder of the number of other actors involved in this conspiracy up to their eyeballs who are currently un-indicted co-conspirators. There are at least six co-conspirators Smith has identified who appear in this document as:
CC1 Rudy Giuliani
CC2 John Eastman
CC3 Sidney Powell
CC5 Kenneth Chesebro
CC6 Boris Epshteyn
Note that CC4 doesn't actually appear in this motion document which seems to confirm that co-conspirator #4 in the the original indictment was DOJ official Jeffrey Clark. He has vanished from this revised indictment because the evidence available to charge him is direct communication between a President and his own administrative officials and was thus protected by the Supreme Court's new immunity protection.
There are also other parties merely labeled Pnn, many of who were Republican State government officials and legislators who were contacted by Trump's private team in the course of filing bogus charges of fraud and went through some of the motions but quickly dug in and refused to cooperate in the absence of ANY evidence of Trump's claims. However, one party in the document stands out. P39 in the document is clearly RNC Chairwoman Rona McDaniel. The litany of events and evidence summarized in the motion references P39 quite frequently and she seemed to be another incarnation of Mark Meadows. Someone in the middle of a significant volume of communication about criminal acts who was more than willing to keep the memos and text messages flowing among all of the co-conspirators and lackeys across the Republican Party.
Her deep involvement in the flurry of communications between the Trump campaign and the core Republican Party seems a bit off, given the pearl-clutching demonstrated by her father Mitt Romney as he bemoaned how MAGA fanatics have destroyed his traditional country-club loving, private-equity friendly Republican Party of yore. Mitt, if you were that concerned watching your party go to hell in a handbasket, maybe you should have called a family meeting and had a philosophical chat with your own daughter.
Here's a reference to Wisconsin Senator Ron Johnson:
Later that morning, CC5 worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President.
And don't forget. There are one hundred and six Republican members of Congress who were serving in December 2020 who signed a joint amicus brief sent to the Supreme Court arguing ON BEHALF OF arguments that would have allowed state legislatures to selectively reject their own electoral college slates and replace them with another if they objected to anything altered by other government officials (Governors, Secretary of State, Attorney General, etc.) during the execution of the state's election. Most of them are still in power and likely to win re-election.
WTH
