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Trump’s Jan. 6 acts were personal, not presidential, prosecutor argues
In a court filing unsealed on Wednesday, special counsel Jack Smith said Donald Trump “resorted to crimes” in an effort to retain power despite losing the 2020 election, including pressuring then-Vice President Mike Pence not to certify electoral votes. Smith is trying to persuade Judge Tanya Chutkan that the former president’s actions were of a personal nature, and thus don’t fall under the sweeping protections for presidential acts the Supreme Court granted earlier this year.
The unsealed documents recount a Nov. 12, 2020, meeting between Trump and Pence where the vice president attempted to deflect pressure from Trump by offering avenues for deescalation and a peaceful transfer of power. “Don’t concede but recognize the process is over,” Pence told him, urging Trump to instead run again in 2024. According to the filing, Trump replied that he was not willing to wait.
If Smith is successful, the acts in question may remain a part of the indictment against Trump as the case moves forward. If not, the government has a harder case to make. Either way, there will be no resolution before the November election — and if Trump wins, well, all bets on Smith’s case are off.
U.S. Special Counsel Jack Smith makes a statement to reporters about the 37 federal charges returned by a grand jury in an indictment of former U.S. President Donald Trump on charges of unauthorized retention of classified documents and conspiracy to obstruct justice, as Smith speaks at his offices in Washington, U.S. June 9, 2023.
Special counsel drops new Trump indictment
Special counsel Jack Smith filed a new superseding indictment in former President Donald Trump’s election interference case on Tuesday. Smith aimed to conform with the Supreme Court’s ruling granting broad immunity to presidents for official acts. The new indictment removes charges associated with Trump allegedly directing his Justice Department to conduct phony election fraud investigations and choose fraudulent electors, as the high court ruling protects them as official acts.
Smith filed the indictment just ahead of the DOJ’s “60-day rule,” which discourages filing politically sensitive cases near elections. He said in a written notice to the court that the indictment reflects the finding of “a new grand jury that had not previously heard evidence in this case.”
Smith will not seek to have Trump re-arraigned, and it’s highly unlikely that the case will be resolved before the election.
What does this mean for the campaign? It may not move the needle much, says Eurasia Group’s Clayton Allen.
“Voters will have a hard time keeping [Trump’s] different cases separate, and we've seen them recede as important factors in polling and public opinion,” he says. “Basically, the criminal stuff has been overshadowed by, well, everything that has happened in the last couple of months.”
Still, the ongoing legal actions could have significant implications for Trump. “The dogged attempts by federal prosecutors," says Eurasia Group US managing director Jon Lieber, "make the stakes of this election clear: If Trump loses, he's probably going to jail.”
Special Counsel Jack Smith makes a statement to reporters about the 37 federal charges returned by a grand jury in an indictment of former U.S. President Donald Trump on charges of unauthorized retention of classified documents and conspiracy to obstruct justice as Smith speaks at his offices in Washington, U.S. June 9, 2023.
Why did a federal judge just dismiss Trump’s classified documents case?
Donald Trump has just received some very welcome news: Aileen Cannon, the federal judge overseeing the indictment alleging that Trump took classified documents when he left office, has just thrown out the case.
Cannon, a federal judge appointed by Trump, ruled that the appointment of special counsel Jack Smith violated the Appointment Clause of the Constitution because he was not appointed by the president or confirmed by the Senate. Her decision goes against the post-Watergate precedent that upheld the legality of independent prosecutors.
The idea that Smith, who was appointed by Attorney General Merrick Garland, was unconstitutionally appointed was initially raised in the recent Supreme Court decision giving the president substantial immunity from criminal prosecution. Justice Clarence Thomas encouraged “lower courts” to look into the “essential questions concerning the special counsel’s appointment.”
What does the constitution say: The Appointment Clause says that the president and the Senate have the power to appoint “Officers of the United States” but that Congress may allow “inferior officers” to be appointed by “the heads of departments,” like the Attorney General.
So the discrepancy is whether the special council is considered an inferior officer and whether, as Thomas wrote, his appointment was valid “unless a statute created the special counsel’s office and gave the Attorney General the power to fill it.”
Smith will inevitably appeal, but the decision means that Trump has overcome another major legal threat – and this one on the first day of the Republican National Convention, where he is set to formally become the party’s nominee for president.
Trump's uncertain future amid new indictments
Jon Lieber, head of Eurasia Group's coverage of political and policy developments in Washington, DC shares his perspective on US politics.
Will these new charges finally sink Trump?
And the answer is probably no. Special counsel Jack Smith this week announced a new set of indictments against President Trump for tampering with and destroying evidence in the case related to his mishandling of classified documents at his Mar-a-Lago estate. President Trump has survived multiple rounds of scandal, legal challenges, and ethical lapses that would've sunk any other politician. And politically, it sure looks like this one's not going to make much of a difference. He's still on top of the dog pile. That is the Republican presidential nomination process, and there probably won't be any consolidation or action on that until the first votes are cast in Iowa in January. What this does mean, however, is that it increases his legal jeopardy because it seems unlikely that the special counsel would've brought these additional charges if he didn't think he had sufficient evidence to find him guilty in a court of law.
So, for President Trump, the best hope he has is that it's impossible for Smith to find a jury that would convict him, or that he can get out of this in some kind of legal technicality because the evidence that's starting to mount against him, both for the mishandling of the documents and now for obstruction of justice sure looks pretty bad. The trial is set to begin in May of next year, which means that a guilty verdict could come down even before the Republican Convention in July. And if not then, then maybe before the November election, or of course he could be acquitted. If he is found guilty, the sentencing would be the big question. Does he get sentenced before the election and does he continue to run from office while he's serving in jail? So, lots of unprecedented questions coming out about this latest case as President Trump continues to destroy norm after norm of American politics.