More on Jack Smith’s Immunity Filing

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Harry Litman was kind enough to invite me onto Talking Feds yesterday to go over Jack Smith’s immunity document.

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  1. SteveBev says:

    Re-upping a comment from previous thread as it includes link to transcript

    From Talking Feds: A Second Look At The Jack Smith Brief, 10 Oct 2024
    “a survey of some important points that were maybe missed in the first time around, as people, including me, were very quickly foraging.
    And to do it,
    •we have really the perfect person• :
    Marcy Wheeler …”

    https://podcasts.apple.com/gb/podcast/talking-feds/id1456045551
    Includes transcript
    Nb you may have to alter the country code in the link to make it work for you

  2. Error Prone says:

    After listening, how SCOTUS buys Trump – Pence interactions as admissible or not, and how they have yet to address the Constitutional Role/candidate dichotomy, show uncertainty. That SCOTUS can, if Harris wins, cement the dichotomy argument as how to gauge official vs. unofficial conversations/actions. Curb Harris in, or, to let Trump off the hook, make her powers greater. If the votes at SCOTUS move, whose would be shifting is worth a thought.

  3. Error Prone says:

    OT but: https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html — A prof/former Bush official, trashes Jack Smith timing – I have the link but NYT has a subscription wall. So, those with access can read it. NOTE – nothing new, I’d guess, but sand in the gears. NOT intending to redirect the thread, Just, it’s there.
    What Smith is thinking SCOTUS-wise, how Robert’s immunity opinion led to new emphasis, is itself very important, and the posted conversation is trenchant. Hat tip on that.

  4. Sussex Trafalgar says:

    Excellent podcast!

    Great researchers like EW make good attorneys and occasional law professors like Litman even better.

  5. John Herbison says:

    There is a remarkable irony about Team Trump’s blather about what it characterizes as “election interference” by the Special Counsel regarding the timing of filings after remand from the Supreme Court. Trump there is the author of his own misfortune. On December 1, 2023 Judge Chutkan denied Trump’s Motion to Dismiss Based on Presidential Immunity. As Trump was entitled to do, he sought interlocutory review on appeal of that order.

    That interlocutory appeal need not have been taken at that time — Trump could have stood trial and raised his claim of entitlement to immunity posttrial in the event of conviction. It is interesting to game out what likely would have happened had Trump done that. That scenario calls to mind the maxim from Aesop’s Fables (circa 260 B.C.), “Be careful what you wish for, lest it come true.”

    Suppose Trump had gone to trial before a jury on the original indictment beginning March 4, 2024 as was originally scheduled. The trial would likely have lasted several weeks to a few months. In the event of an acquittal, he could have stood before the electorate in November as an exonerated man. In the event of conviction on one or more counts, he could have raised his claim of entitlement to immunity on posttrial appeal. While bail pending appeal in federal court is the exception rather than the rule, the absence of any precedent regarding a former president’s claim to immunity from prosecution would have weighed in favor of Trump being granted bail after imposition of sentence.

    Assuming that SCOTUS would then have followed the same reasoning set forth in its July 1 opinion, the conviction would no doubt have been vacated and the matter remanded to the District Court for the kind of factual and legal determinations regarding what acts were official and what acts were not, in the same manner as is presently ongoing. If immunity were denied after remand, that order of denial would be appealable prior to any retrial. Trump might have even bought himself enough time to die before a retrial could be concluded.

    Instead, Trump did appeal pretrial, and Br’er John, Br’er Clarence, Br’er Sam, Br’er Niel, Br’er Brett and Sister Amy threw Br’er Jack smack dab into the middle of the briar patch.

    As Groucho Marx very aptly said, time wounds all heels.

    • dopefish says:

      Your thought experiment would have required TFG to endure trial and risk a conviction, though. Even if this partisan Supreme Court later overturned it, that might have played very badly for him in the court of public opinion.

      Liable for repeatedly defaming E. Jean Caroll? His supporters can ignore that.

      Guilty of massive fraud in the State of New York? He can whine that its a partisan ‘Witch Hunt’ and not lose too many voters.

      But I suspect being convicted of trying to steal the 2020 election–before, during and after he had lost the vote–might be a bridge too far, even for some Trump supporters. [edit: plus it would bring up his eligibilty to be President again under the 14th Amendment.]

      His current strategy of delaying the reckoning until after election, once seemed like a long shot. But TFG has been astoundingly successful at it, which isn’t a great look for the American legal system. Justice delayed, is justice denied.

  6. HikaakiH says:

    I think the discussion with Harry was excellent – Marcy’s speaking to the overall shape of the thing while simultaneously delivering loads of detail about the ‘evidence’ as it stands while Harry chimed in to provide legal context. For me it was an excellent mix. Thank you.

  7. brucefan says:

    Perhaps the point that Trump was acting as a CANDIDATE when he talked to Pence about Pence’s certification responsibilities misses a larger point.

    Smith’s argument establishes that a President has no official role with respect to Pence’s certification responsibilities. This doesn’t just rebut the presumption of immunity, it establishes that the presumption should not apply because Trump was not acting in an official capacity (* see comment below).

    Trump’s request to Pence should have the same legal status as if the request came from Elon Musk, Harlan Crow or Leonard Leo. IOW, Trump was acting as a PRIVATE CITIZEN, not as a PRESIDENT.

    *I am aware Robert’s decision has a (currently) binding contrary conclusion. If this case ever gets back to SCOTUS Roberts may be inclined to walk back his original bold holding, which was based on a limited record.

    • earlofhuntingdon says:

      That’s funny. John Roberts seems as likely to walk back his decision, even a little, as he is to force Clarence Thomas to recuse himself from a single case.

      • brucefan says:

        The facts developed in this case will allow him to walk back from “if the President does it, it’s official.” Regardless of whether the action is 100% the action of a private citizen.

        He doesn’t have to surrender his entire immunity structure to accept this reality. Justice Coney Barrett gave him the opening, he didn’t take it this spring, but it will look more attractive after Harris’ rout.

        Mr. Legacy will fold – I’ll wager a cold beverage.

  8. Savage Librarian says:

    Did you know that Matt Schlapp was a participant in the Brooks Brothers Riot in Florida in 2000? That makes the mention of his name in the article below more interesting.

    I shared the article the other day in the post about Bannon (10/4/24 – From the Willard to Danbury Correctional: Steve Bannon Allegedly Joins the Conspiracy.) But I thought it might be worth mentioning again. I wonder if Matt Schlapp spoke with the grand jury. I wonder if his name appears anywhere as one of the redactions that have not been deciphered.

    From the WP article:

    “The outcome was that Giuliani and Ellis, as well as Powell — the “elite strike force,” as they dubbed themselves — became the faces of the president’s increasingly unrealistic attempts to subvert democracy.”

    “The strategy, according to a second senior administration official, was, “Anyone who is willing to go out and say, ‘They stole it,’ roll them out. Rudy Giuliani, Jenna Ellis, Sidney Powell. Send [former acting director of national intelligence] Ric Grenell out West. Send [American Conservative Union Chairman] Matt Schlapp somewhere. Just roll everybody up who is willing to do it into a clown car, and when it’s time for a press conference, roll them out.”

    https://www.washingtonpost.com/politics/trump-election-overturn/2020/11/28/34f45226-2f47-11eb-96c2-aac3f162215d_story.html

    “Inside Trump’s failed quest to overturn the election” – The Washington Post

    • harpie says:

      I hope you’re OK down there in Florida, SL!

      Thanks for posting that article.
      It is jarring to read that on 11/28/20, after the Third Circuit “wrote a unanimous opinion rejecting the president’s request for an emergency injunction to overturn the certification of Pennsylvania’s election results”

      the authors pronounce that “For Trump, it was over.”

      It was NOT over by a long shot!

      Really good question about SCHLAPP.
      Also, re: BANNON, what about Alexandra PREAT?

    • harpie says:

      That Third Circuit ruling was dated 11/27/20. From the #J6TL on that date:

      11/27/20 Federal appeals court rejects TRUMP’s Pennsylvania lawsuit
      11/27/20 TRUMP tweets:
      https://twitter.com/realDonaldTrump/status/1332352538855747584
      10:56 AM · Nov 27, 2020

      Biden can only enter the White House as President if he can prove that his ridiculous “80,000,000 votes” were not fraudulently or illegally obtained. When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud, he’s got a big unsolvable problem!

      11/27/20 FLYNN announces FLYNN ORG’s “hybrid warfare” op to overturn the election https://twitter.com/visionsurreal/status/1433944789980954629
      8:07 PM · Sep 3, 2021

      FLYNN: [quote] “we’re going to win… because we have the right people.” [] “We have the right plan and strategy… it’s a little bit of direct and a little bit of indirect…” // [We’re going to] “straighten [the election] out” [] “properly [and] legally [with] American patriots, [such as] Sidney POWELL, Rudy GIULIANI and his TEAM, [and] Lin WOOD. At the end of the day, [TRUMP] won by a massive landslide.” [end quote]

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