Jack Smith’s Way Forward

I’m going to write a long post on how John Roberts made elections subservient to the President.

But first, I want to lay out a way forward for Jack Smith. I’ll return to a way forward for Biden.

First: SCOTUS has remanded this case to Judge Chutkan to determine which of the charges can be sustained as unofficial acts. As I’ll lay out, I think they’ve put their thumb on the scale that none of them can be. But by all means, she is now required to spend the next four months figuring that out.

So if I’m Jack Smith, I ask her to block out her time for the foreseeable future to do just that.

Because the President cannot be prosecuted for anything considered a core Presidential act, like bribing Roger Stone with pardons, Jack Smith should issue a report of what Trump did with his core official acts.

Nothing in this opinion prohibits Jack Smith from prosecuting everyone else (save Trump’s closest aides and Jeffrey Clark). So Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.

72 replies
  1. Nutmeg Dem says:

    I look forward to reading this. What’s clear is that Chutkan’s ruling will be reviewed by SCOTUS so a trial, if it ever happens, will be a long way off. I’ve read Roberts’ opinion and am stuck on this one question: the pardon power is a core constitutional power of POTUS so a POTUS taking a bribe in exchange for one (which Trump allegedly did) is immune from criminal prosecution?

    • Ben Soares says:

      ….based on their ruling any action taken by POTUS is inadmissable in court

      If I read Roberts footnote correctly.

      • Commander Ogg says:

        But Article II, Section 4 of the Constitution says “the President…shall be removed from office if convicted in an impeachment trial of “Treason, Bribery…”
        Does this imply that bribery can not be an “official act” because it is grounds for impeachment?

        • David Brooks says:

          Once again we are being forced to look for clarity when it isn’t there. Does “cases of bribery” mean accepting a bribe? Probably so; I expect the Founders were more interested in it that way round, rather that the way, say, Stormy Daniels was bribed to shut up.

  2. Benvindo Soares says:

    Are unofficial acts the ones that he does after he punches out on the time clock or his Oath?

    What an embarrassment to the World .

  3. Challenger says:

    Does this mean Biden could have Trump and the six conservative supreme court justices arrested and shipped off to git mo

    • Chuffy sez says:

      My thoughts are along those lines as well. Get the DOJ to investigate the SCOTUS judges for bribery and perjury, for instance. Nothing stopping him under “official acts.” Oops

  4. Lando314 says:

    Does the decision make the Georgia case disappear? A president can be bribed for a pardon (🤦🏻‍♂️) but does that mean the briber gets off too? Questions that I thought were silly and trivial but now, who knows.

    • Rayne says:

      No. Presidential pardon power only extends to federal crimes, not state charges.

      ADDER: please avoid using emojis in comments here as they are not searchable. Emoticons are acceptable.

      • Robot-seventeen says:

        Hmmm… Or maybe it does because any and all testimony involving official or core acts can’t be considered.

        Lots of ramblings on how the NY conviction will be vacated due to testimony from Hope Hicks and Westerhout etc. I suspect the Supremes threw that in for the NY prosecution.

        • Rayne says:

          Trump’s fraudulent business document criming in New York State began when he was a candidate to preserve his candidacy, using his personal lawyer and his business accountant to produce fraudulent business documents. This was not in any way related to his core or official acts — it was how he cheated to become president.

        • SteveBev says:

          ABC has a potted version of what is thought to be the evidence at issue
          “Ahead of the trial, Trump’s lawyers asked that the judge overseeing the case limit certain evidence based on Trump’s immunity claim. The evidence — a government ethics form disclosing the reimbursement at the center of the case, and Trump’s social media posts from his official Twitter account in 2018 related to an alleged “pressure campaign” against his former lawyer Michael Cohen — was admitted into evidence during the trial after Judge Juan Merchan rejected the immunity argument as “untimely.” “

          So the counter arguments are
          1. Waiver due to untimeliness of assertion of immunity
          2 if the motion had preserved the issue it was limited to the class identified within the filing and not otherwise
          3 even if the presumption re official act applied to that class it is rebuttable on its face because it relates to statements in respect of personal dealings with his personal lawyer
          4 in any event the evidence is de minimis

      • Error Prone says:

        Taking documents was while still an official. Keeping them was as a private citizen. After office was left and the torch was passed. Giving only some back, forcing a search warrant, was well after he’d left the White House.

        • joel fisher says:

          And, for the love of god, obstructing the investigation was citizen Trump’s behavior. A smart Special Counsel would have–long ago–dropped all the charges except obstruction. Maybe Smith is not doing so because there’s no chance of a Trump conviction of anything in Peckerwood, FL and he doesn’t want to hear Trump crow.

  5. Estragon says:

    What effect, if any, would this have on Clark’s disciplinary/disbarment proceedings in DC? IMO, one of the worst features of this horrendous decision is that weasel skating.

  6. soundgood2 says:

    This decision seems to pave the way to more expansive Executive Orders than ever. Any suggestions as to what Biden could do with this?

    • fatvegan000 says:

      Even if Biden manages to sustain the miraculous post-debate return of zip (yes this is sarcastic, because Biden really let America down and my feelings are still hurt), he won’t do anything in today’s America that he wouldn’t in yesterday’s, and people should stop fantasizing that he will. Doing so is both agonizing and unproductive.

  7. cruxdaemon says:

    Since the backwards reasoning of the SCOTUS majority make this pre-trial factual analysis a substitute for true jury fact-finding at trial, I suppose that Judge Chutkan will have to undertake that very effort. Gather a pre-trial factual record, including testimony and cross-examination, to flesh out her analysis. As bad as this ruling is, in this case Trump colluded with tons of private actors who had no role in the administration and presumably their testimony can be compelled. There’s also copious contemporary reporting about the public acts Trump committed during this time period. Gathering all of that evidence and reaching a determination of the boundaries by the election would keep his conduct in the news every day until then.

    Of course a pre-trial, judge-delivered analysis does not hold the public legitimacy of 12 impartial jurors considering the evidence and giving their view on the facts, but it’s something.

    • Ebenezer Scrooge says:

      If there’s fact-finding required, what about an advisory jury? I know that they are permissible in civil trials (I faced one of them once), but don’t know about other judicial contexts.

      • Cassandra_CHANGE-REQD says:

        Is that the same as an evidentiary hearing? That would allow all his bad acts to come out in a objective way neither side can refute.

        [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because there are more than one Cassandra/Kassandra in this community, you’ll need a name more unique or salted with additional letters or numbers. Thanks. /~Rayne]

  8. xyxyxyxy says:

    Most likely they will overrule any case vs Trump. So why not file as many lawsuits as possible so as to break him financially. Can the stolen documents case be refiled in DC?

    • BreslauTX says:

      Smith/DOJ filed in Florida for the various issues – violations that Trump did by not giving back the Documents after January 2021 and was at MAL. There is a documented trail of Trump’s and his legal team’s interactions with the National Archives in 2021 and then National Archives and DOJ/FBI in the first half of 2022. So there is clarity on who said and did what which makes it a cleaner case for the Prosecution to get a Win.

      When Trump was in the White House (January 2017 – first part of January 2021) there is quite a bit of Fog on who packed the Documents and transported them to MAL. The Fog of who did what in regards to the Documents during those four years makes it much more difficult for Smith to have a winning case in Court compared to the case in Florida about Trump’s efforts to not give the documents back in 2021 and 2022 when he was at MAL.

      • xyxyxyxy says:

        I know that it’s a “cleaner case for the Prosecution to get a Win.”
        But every case is going to SCOTUS no matter what, so in my view it’s no longer what’s “cleaner”. It’s how to financially clean him out with legal bills by indicting him everywhere.

        • theartistvvv says:

          That is not, and should not be, happening.

          As well, it would be unethical.

          These are US government criminal law cases, not civil cases, within which such tactics would also be unethical, if not exactly rare.

  9. ApacheTrout says:

    I would expect Trump to file briefs prohibiting Smith from issuing any report, with the object of delaying until Trump gains office and can find the next Bill Barr, or to delay until it’s practically moot.

  10. Marinela says:

    If Obama knew how much power he actually had. Back in 2016, he would promptly confirm Merrick Garland as the justice and be done with it. He was doing his Presidential core duty. The Congress didn’t do its’ job in that spot, so nothing could stop the President to do his.
    Nor should he.
    Well, what a difference few years makes.

    • earlofhuntingdon says:

      Let’s not be silly. A president’s official act is to nominate a Supreme Court Justice. His power does not extend to confirming his appointment. That is the exclusive provenance of the Senate.

      • RealAlexi says:

        Acting A.G. Whittaker has entered the chat…

        No worries about Biden racing to the bottom, but could a Trump like POTUS now craft executive orders that rearrange the way the branches function? I am obviously not a lawyer ;-) (If you think it’s a stupid question just say so)

      • Super Nintendo Chalmers says:

        The Senate shall advise and consent….not holding a hearing for someone who received 97 yeah votes for their appellate court confirmation could be deemed advising and consenting.

        Dahlia Lithwick with Slate in 2016 cited a Yale Law Review article that said that absent a vote after 90 or 120 days could meet the standard of advising and consenting.

      • Troutwaxer says:

        I believe the president can make an appointment for a limited term (of two years) without congressional approval. I’m not sure that included judges.

    • CovariantTensor says:

      I thought Obama should have made a “recess appointment”. It’s how John Bolton became a UN ambassador, for example. It would have been challenged, of course, and possibly shot down by the very court he was trying to appoint to. But better than doing nothing. You’re right, the congress was refusing to do its job.

  11. Marinela says:

    The crime happened already, pardons for bribes. So how is it possible the law is now redefined to mean something else? Cannot take bribes. This is pretty much in Constitution.

    • FL Resister says:

      Your question is abhorrent.
      As long as forces fighting criminal acts do not engage in criminal acts we have a better than even chance to prevail.

      The corruption is in plain sight. The money is on the balance sheets. Pro Publication and Sheldon Whitehouse are on the case while Durban dawdles.
      Jamie Raskin and Jamie Plaskett both great states-people and speakers. The stars must come out now especially bright and shine their lights on the obvious corruption rotting our democratic system via bribes and dark money.

  12. Stacy (Male) says:

    Just spitballing: In every re-Trump classified docs case, the defendant has been taken into custody for as long as it takes to find out what use was made of the records, etc. This didn’t happen here because it’s the Donald. Now that the President is immune from any legal consequence for an official act, Biden can formally instruct the DOJ to arrest Trump in the interests of national security and keep him locked up until the FBI is satisfied that they have exhausted his knowledge as to who he shared classified info with, where he is keeping other documents, etc. Why the hell not?

    • GlennDexter says:

      Here’s an idea.
      By a 6-3 vote, the Supreme Court justices ruled the U.S. government can claim a privilege of secrecy even if there is no secret.
      The Supreme Court ruled Thursday that the government may invoke the “state secrets” privilege to block former U.S. contractors from testifying about the now well-known waterboarding and torture of prisoners held at CIA sites.

  13. Stacy (Male) says:

    Before Trump, persons improperly in possession of classified docs were routinely held in custody while the FBI wrung out all relevant information about what was done with the docs, what other docs may exist, etc. Of course this didn’t happen here because it’s the Donald. Now that the president is immunized from all “official acts” regardless of motive, maybe Biden should tell the FBI to lock ’em up until he spills whatever he knows. Should take a while.

  14. fatvegan000 says:

    “…Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.”

    Thank you for this, I hope Smith listens to you. I’ve always been willing to trade a Trump prosecution for that of his enablers. He is too stupid to have been able to do any of the steal attempt on his own, and a Trump-only prosecution is hardly a deterrent for those contemplating enabling future steals.

  15. boloboffin says:

    Under the unitary executive principle, wouldn’t Executive Branch officials acting on the orders of the President have the same level of immunity the President’s act enjoys?

  16. RealAlexi says:

    So, Trump could have “officially” shot someone to death on 5th Avenue and it would be just dandy.

    This is INSANE.

    A question if anybody’s got some input: I believe part of this ruling exempts all official correspondence etc from being used as evidence in a court of law. With that being the case, is it possible for the prosecution (Jack Smith in this case) to lay it out in public for the people?

    • Cassandra_CHANGE-REQD says:

      I read this can be done in an evidentiary hearing. That would allow all his bad acts to come out in a objective way neither side can refute.

    • eyesoars says:

      So, a sitting president could visit the Supreme Court and “officially” create openings there?

      That is insane.

      • RealAlexi says:

        Yes it is.

        We’re in that situation where the guys with no ethics whatsoever count on the good guys moral reticence to achieve victory. And they win.

        It’s how the GOP’s functioned for decades.

  17. harpie says:

    Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence
    The Supreme Court’s immunity decision directed the trial court to hold hearings on what portions of the indictment can survive — a possible chance for prosecutors to set out their case in public before Election Day. https://www.nytimes.com/2024/07/01/us/politics/supreme-court-immunity-trump-jan-6.html Alan Feuer July 1, 2024, 4:09 p.m. ET

    […] Mr. Trump’s lawyers will no doubt seek to narrow the scope of the proceeding and push it off for as long as possible. And if he wins the presidency again, he could avoid the proceeding altogether by ordering his Justice Department to drop the entire case.

    But if Judge Chutkan sticks to her practice of dealing quickly with procedural matters and is able to schedule the hearing for September or October, it could lead to something extraordinary: a mini-trial of sorts unfolding in the nation’s capital in what could be the homestretch of the presidential campaign. […]

  18. RitaRita says:

    I always thought an alternative to a trial was a Special Counsel Report. But will the news media ignore it. This should be a hairs on fire moment but the media is fixated on Biden’s age.

  19. coalesced says:

    Will the metadata associated with Trump’s conduct/speech get it’s own set of hearings regarding “presumptive immunity” and “official versus unofficial” classifications? Or are they subject to quantum entanglement and forever melded/inseparable?

    Can triangulated GPS coordinates have motives? Do lists of associated account login privileges/read-write permissions express desires or intents? This may sound silly but i cannot fathom it NOT being argued.

  20. Hoping4better_times says:

    Here is a way-out idea. IMPEACH trump for the 3rd time. Since Congress is an independent branch, the SCOTUS opinion on presidential immunity does not apply. The Jan6 Committee has a mountain of evidence against trump. This evidence can be presented to the Senators in a Senate Trial. Witnesses can also be called to testify against trump. Immunity is not an issue. And John Roberts gets to preside.

    At the 2nd Impeachment, 57 Senators voted to convict trump. If 10 more Senators can be convinced to convict, then trump will be disqualified to serve as president. Three times is the charm (?)

    • Rayne says:

      This is not the same senate which existed in January 2021 before Inauguration Day. It’s unlikely the current Senate would produce enough GOP senators willing to go against their own party — one with Lara Trump as head of RNC and therefore its checkbook — to convict Trump after the fact.

      Not to mention the House is still held by a scant GOP majority and unlikely to impeach.

  21. John Herbison says:

    Suppose Judge Chutkan upon remand issues an order that: (1) strikes some allegations of the indictment as impinging on the core constitutional powers of the president, (e.g., Trump’s communications with the Acting Attorney General and Acting Deputy Attorney General,) (2) finds that the prosecution has rebutted the presumption of immunity as to Trump’s attempts to pressure Mike Pence to take particular acts in connection with his (legislative) role at the electoral count certification proceeding, and (3) finds that the balance of Trump’s conduct alleged in the indictment constitutes the unofficial acts of an office-seeker pursuant to Blassingame v. Trump, 87 F.4th 1, 17 (D.C. Cir. 2023). Such a ruling would comport fully with the SCOTUS decision, and it would require Trump to stand trial.

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