The disappointment continues to mount for prosecutors hell-bent on their mission to “Get Trump.” For instance, earlier this month, Judge Chutkan of the D.C. District Court gave both the prosecution and the defense another few weeks to mull over how the Supreme Court’s recent ruling in Trump v. United States might affect Jack Smith’s election interference case against President Trump, charging the former president with four felonies.
In her order, Judge Chutkan asked both the prosecutor Jack Smith and the defense to provide a detailed plan for how they intend to pursue the robust “fact-finding mission” now required under the Supreme Court’s decision under Trump by Aug. 30, according to The New York Times. Jack Smith originally had requested the extension to “assess the new precedent,” the outlet reported.
The “new precedent” bemoaned by Smith is a good one — and a necessary one. In its landmark Trump decision on July 1, the U.S. Supreme Court ruled that the former president has “absolute immunity from criminal prosecution” for “actions within his conclusive and preclusive constitutional authority,” reiterating that presidents must enjoy a “presumption of immunity” when engaging in “official acts.”
Washington, D.C.: Prosecution by Biden DOJ for Jan. 6 Speech
This is the case, brought by Special Counsel Jack Smith, out of which the Supreme Court’s decision arose.
In its opinion, the majority effectively shrunk the universe of possible acts for which Trump could be prosecuted, determining, for instance, that President Trump’s alleged efforts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors” are non-prosecutable offenses, even if proven.
The court also determined that his interactions with Vice President Mike Pence regarding rejecting the states’ electoral votes on the basis of possible fraud were presumptively immune, insofar as each was discussing actions taken in his official role. According to the court, this presumptive immunity may also extend to a host of other communications President Trump may have had or engaged in, including conversations with local officials and various tweets he may have sent out in relation to the 2020 election.
Recognizing what a barricade the court’s Trump decision presented to his case, and with just two months to go before Election Day, Smith filed a superseding indictment last week that attempts to distinguish between acts by Trump as a private citizen and acts as a president. (This came despite the Department of Justice’s standing practice that, within two months of an election, it should refrain from an action that favors or disadvantages any political candidate.) President Trump’s lawyers have countered that the very evidence heard by the grand jury — which itself contained details of official acts — is enough to achieve the bar of immunity and that the case must therefore be thrown out.
What’s more, Trump isn’t the only Supreme Court case that substantially handicaps Jack Smith’s case.
Smith indicted President Trump on four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. The counts related to obstruction are now likely barred by the Supreme Court’s opinion in Fischer v. United States. In that case, the Supreme Court determined that the obstruction charges facing hundreds of Jan. 6 defendants, as well as President Trump himself, are to be interpreted in a much narrower manner than the Department of Justice had interpreted them.
Despite attempts by the left to portray this ruling as inconsequential for President Trump, it is surely a boon with regard to at least two counts in Jack Smith’s original four-count indictment.
Namely, the Supreme Court determined that section 1512(c) of the Sarbanes-Oxley Act concerning obstruction of justice must involve the obstruction of a proceeding through the destruction, alteration, or concealment of evidence; unlike the DOJ’s wide interpretation, it is not enough for an official proceeding to be simply obstructed. The ruling throws into question the indictment of some 350 Jan. 6 defendants, plus two of the four counts against President Trump here.
Indeed, with Fischer decided, the bar is now much higher for those prosecuting Trump. It is not enough to simply declare the former president galvanized his base and pressured then-Vice President Pence to count electoral votes in a certain fashion.
Also notable: Smith’s very appointment was just invalidated by a federal judge in Florida in a separate case. While that case does not carry the weight of precedent in another jurisdiction, it should certainly carry persuasive value with the federal judge hearing this case. Should that judge agree with Judge Cannon’s decision, it would follow that these charges would also be dismissed.
Jack Smith’s prosecution of the former president in Washington, D.C. isn’t the only one of the various politically charged cases Democrats have stacked up against the former president which may fall apart after the Supreme Court’s immunity ruling.
Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment
After Manhattan District Attorney Alvin Bragg prosecuted Trump for supposed “falsification of business records” over a nondisclosure agreement Trump’s lawyer had procured from a pornographic film actress, a New York jury — shepherded by a judge who donated to Biden’s campaign — returned a conviction. Now, as a result of the Trump ruling, every one of the “34 felony convictions” so oft celebrated by the left — and patently non-decipherable to the rest of the country — faces a serious threat.
The judge in that case must determine whether the presidential immunity outlined in Trump must invalidate the charges alleging President Trump falsified business records. President Trump’s lawyers have argued that this immunity invalidates the verdicts as evidence relied on by jurors would have been protected by the finding of immunity, and New York D.A. Alvin Bragg recently sent a letter to the judge acknowledging the validity of this argument. If the judge here agrees, those 34 felony convictions would likely evaporate.
Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents
Judge Aileen Cannon already dismissed the charges in this case, ruling the appointment of Jack Smith unconstitutional. Judge Cannon may have found Supreme Court Justice Thomas’s concurring opinion in Trump a compelling one. There, he questioned whether, as a threshold matter, Jack Smith’s fishing expedition was even a legitimate and constitutional enterprise, noting that no president has ever faced prosecution for acts while in office.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Justice Thomas wrote. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Judge Cannon found that Smith’s appointment was unconstitutional due to improper funding, insufficient appointment procedures by the president and senate, and a lack of statutory authority. Naturally, Smith has appealed this decision, however, a federal appeals court would need to overturn Judge Cannon’s decision for this case to proceed.
Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results
What remains of the left’s assault on the former president is somewhat unimpressive. The election interference case in Fulton County, Georgia, remains more reminiscent of a Jerry Springer episode than of a local prosecutor holding power to account, as it was revealed that District Attorney Fani Willis had been engaging in an expensive affair with her special assistant district attorney (who, coincidentally, had been hired specifically to work on this case).
While the court rejected that Willis stood to benefit financially from keeping the case alive, insofar as Wade wined and dined with his boss, it’s fairly obvious that, as The Federalist’s Margot Cleveland writes, “Willis could benefit personally without benefiting financially by bestowing her beau with a cushy county contract, whether it gave Willis a sense of control in the relationship, helped her curry favor with Wade, or merely provided Willis a chance to spend more time with her lover.”
The indictment remains alive for now, but the credibility of the prosecutor is shot.
In Trump, the court noted that the former president has argued it is “[a]bsolutely an official act for the president to communicate with state officials on … the integrity of a federal election.” Since Willis’ case is predominantly based on a phone call Trump made with Georgia Secretary of State Brad Raffensperger about the 2020 presidential election, the Supreme Court’s decision could neuter Willis’ lawfare campaign too, if Willis doesn’t do so on her own first.
In short, Trump and Fischer, and the downfall of Fani Willis, collectively mean that the Democrats’ larger lawfare project has all but collapsed. The all-encompassing project of criminalizing President Trump has been effectively kneecapped. Democrats are no doubt scrambling to locate more novel charges to bring against the former president, but the judicial branch must hold strong as a voice of sanity amidst a sea of lawfare against Republicans.
Steve Roberts is a partner and Erielle Davidson is an associate with Holtzman Vogel Baran Torchinksy & Josefiak PLLC. They can be reached at sroberts@holtzmanvogel.com and edavidson@holtzmanvogel.com.
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