If I were a younger man, I would start a nationwide petition calling on the MAGA members of the Supreme Court to resign—and I generously include Justices Roberts, Alito, and Thomas who, while they predated the Trumpian re-naming of their Christian Far Right movement, have adapted perfectly.
In my last column, I wrote about Special Counsel Jack Smith’s attempt to undo the damage Judge Aileen Cannon has done to his stolen-documents case.
Now I want to talk about how, in his attempts to hold Donald Trump accountable for his efforts to undo the 2020 election, Smith must navigate around and comply with the Supreme Court’s decision to undo the hallmark notion that, in America, no man is above the law. Their immunity decision undid many of the charges of Smith’s original indictment:
In Trump v. United States, Trump’s appeal, the Supreme Court ruled that a president could successfully argue that even illegal actions that he had taken were part of his official duties—the Court called them the “President’s exercise of his core constitutional powers”—and, in those cases, deserves absolute immunity from prosecution:
The Court declared that the nature of presidential power is such that “When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions.” Somehow, the Court managed to de-emphasize January 6 and the violence that threatened our very foundation.
Having extended the privilege of absolute immunity upon the president for “official acts,” the Supreme Court went further. They provided the greatest possible benefit of doubt to a president who now deserves “presumptive immunity” for actions that might possibly cross the line between official and unofficial. Why? Because a forthright attempt to try to determine guilt or innocence may prove “intrusive” and might cause a president to hesitate before taking bold action.
The Court adds:
At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ Fitzgerald, 457 U. S., at 754. Pp. 12-15 (Emphasis added.)
The Court’s “presumptive immunity” extends to conversations, advice, and communications that might otherwise indicate illegal behavior. While the Court in United States v. Nixon rejected the claim of “absolute privilege,” they recognized “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking,” and “held that a ‘presumptive privilege’ protects Presidential communications … Because that privilege ‘relates to the effective discharge of a President’s powers … the Court deemed it ‘fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.’”
The Court suggests they might help to illuminate the difference between immunity-laden official acts and potentially culpable acts of an unofficial nature. They then remove from prosecutors, judges, and juries an absolutely essential tool: evaluating what the president might have been thinking and planning and intending to do and what he/she might have said to others:
These limitations have made Jack Smith’s job a hundred times more difficult. Major portions of his indictment hinged on testimony about what Donald Trump said to, and asked of, those who worked for him in the White House, the Defense Department, and the Department of Justice. Smith’s case relied on conversations revealing Trump’s intentions and demonstrating what he had been told by those in a position to know, as opposed to the lies he told. Many of those conversations—including Trump’s attempts to get the Department of Justice to inappropriately intervene with state election officials—have now been ruled inadmissible.
The Supreme Court requires Judge Chutkan—to whom they are returning judgment on some of these issues—to fact-find without utilizing the most common tools of judicial inquiry: determining motive, judging intent, and gathering the testimony of those closest to the president.
The Court writes:
The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions … Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States frequently makes it ‘difficult to determine which of [his] innumerable functions’ encompassed a particular action.’ Id., at 756. The immunity the Court has recognized therefore extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’ Blassingame v. Trump, 87 F. 4th 1, 13 (CADC). (Emphasis added.)
So Judge Chutkan must determine the “outer perimeter” of “official acts” while acknowledging “presumptive immunity” and all without examining intent:
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of its intended effect.
The Court tells us that some of Smith’s charges just won’t make the cut:
The Court writes:
Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations — such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions.
Remember, Smith had charged Donald Trump and members of the Justice Department with falsely claiming election irregularities and conspiring to create fraudulent electors:
The Court writes:
The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s use of official power. The allegations in fact plainly implicate Trump’s ‘conclusive and preclusive’ authority. The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693. And the President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’— such as the Attorney General — ‘in their most important duties.’ Fitzgerald, 457 U. S., at 750. The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. (Emphasis added.)
Smith also charged Trump with pressuring Vice President Mike Pence to abandon his constitutional responsibility and fraudulently influence the electoral-certification process:
The Court responds:
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
But the role of determining electors is the responsibility of the states and not the federal government, and Roberts hedged his bets:
It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.
So there remains some small space for the government to try and hold Trump accountable for election fraud:
The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public … After Trump failed to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit fraudulent slates of Presidential electors to obstruct the certification proceeding. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.
Smith’s indictment highlighted Donald Trump’s incendiary remarks on the Ellipse on January 6:
The Supreme Court answered:
The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses ‘extraordinary power to speak to his fellow citizens and on their behalf.’ Trump v. Hawaii, 585 U. S. 667, 701. So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President speaks in an unofficial capacity — perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form, and context’ will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. (Emphasis added.)
Then the Court emphasizes:
Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
Then the Court insists:
[Q]uestions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him ‘unduly cautious in the discharge of his official duties.’ Fitzgerald, 457 U. S., at 752, n. 32. The Constitution does not tolerate such impediments to ‘the effective functioning of government.’
To deflect possible criticism that they have intervened on behalf of Donald Trump, the Court insists its focus is non-political and motivated by the desire to protect the ability of the Executive Branch to focus more effectively:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.
Unfortunately, there is no way for the American public to hold its unelected, lifetime Supreme Court appointees accountable. And they refuse to hold themselves bound to the same ethics rules that apply to other justices and public servants. Still, I can’t help but hope that some small sliver of conscience is provoked in them by Donald Trump’s recent confession to FOX News:
Trump told Marc Levin:
It’s so crazy my poll numbers go up. Who ever heard you get indicted for interfering with a presidential election where you have every right to do it. You get indicted and your poll numbers go up. When people get indicted your poll numbers go down.
Back to Special Counsel Jack Smith, who had to deal with the fact that his grand jury had heard now-disqualified testimony. So, Smith very shrewdly convened a brand new grand jury to start the process anew. And on August 27, 2024, he filed a superseding indictment for United States of America v. Donald J. Trump.
This time, he emphasized the actions of candidate Donald Trump, who was running to extend his presidency a second term:
1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.
2. Despite having lost, the Defendant—who was also the incumbent President—was determined to remain in power. So, for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant used his Campaign to repeat and widely disseminate them anyway — to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
3. As a candidate and a citizen, the Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means …
4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation ofl8U.S.C.§371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified (‘the certification proceeding’), in violation of 18U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C. § 241.
(Emphasis added.)
Smith highlights Vice President Pence’s dual role as a fellow candidate and as acting president of the Senate, acting for the Legislative Branch, not the Executive:
5. In furtherance of these conspiracies, the Defendant tried — but failed — to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate who plays a ceremonial role in the January 6 certification proceeding. (Emphasis added.)
Smith emphasizes:
The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. These co-conspirators included the following individuals, none of whom were government officials during the conspiracies and all of whom were acting in a private capacity:
When it comes to our elections, Smith highlights the role of the states and the Legislative Branch, but not the Executive:
The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it … After election day, the ECA required each state to formally determine — or ‘ascertain’ — the electors who would represent the state’s voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state’s ascertained electors were required to meet and collect the results of the presidential election —that is, to cast electoral votes based on their state’s popular vote, and to send their electoral votes, along with the state executive’s certification that they were the state’s legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result — thus certifying the winner of the presidential election as president-elect. This federal government function — from the point of ascertainment to the certification — is foundational to the United States’ democratic process, and until 2021, had operated in a peaceful and orderly manner for more than 130 years. (Emphasis added.)
In a section entitled “The Defendant’s Knowledge of the Falsity of His Election Fraud Claims,” Smith focuses on those involved in the Trump campaign, rather than those who were worked for and were accountable to the Executive:
12. Throughout the conspiracies, the Defendant, co-conspirators, and their agents made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election …
13. The Defendant was on notice that his claims were untrue. He was told so by those most invested in his re-election, including his own running mate and his campaign staff. Federal and state courts rejected every outcome-determinative post-election lawsuit filed by the Defendant, co-conspirators, and their allies. State officials —- including election directors and Secretaries of State in his own political party — issued public statements dispelling the Defendant’s and co-conspirators’ myth of widespread election fraud …
Smith emphasizes the non-official, non-governmental status of the rally on January 6, 2021, and the campaign speech delivered by Donald Trump: “15 … That morning, the Defendant gave a Campaign speech at a privately-funded, privately-organized political rally held on the Ellipse in Washington, D.C. …”
Smith describes:
The Defendant’s Use of Deceit to Get State Officials to Subvert the Legitimate Election Results and Change Electoral Votes … On November 13, the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona … From that point on, the Defendant and co-conspirators executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat the federal government function … The Defendant had no official responsibilities related to any state’s certification of the election results. (Emphasis added.)
As an example: “The Defendant and Co-Conspirator 1 falsely asserted, among other things, that a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona …”
As for Georgia, “As early as mid-November, the Defendant’s Senior Campaign Advisor informed the Defendant that his claims of a large number of dead voters in Georgia were untrue.” Nevertheless:
a. A Campaign attorney and agent of the Defendant and Co-Conspirator 1 falsely claimed that more than 10,000 dead people voted in Georgia. That afternoon, a Senior Advisor to the Defendant told the Defendant’s Chief of Staff through text messages, ‘Just an FYI. [A Campaign lawyer] and his team verified that the 10k+ supposed dead people voting in GA is not accurate. … The Senior Advisor clarified that he believed that the actual number was 12.’ …
On December 8 …The Georgia Attorney General told the Defendant that officials had investigated various claims of election fraud in the state — including the State Farm Arena allegations — and were not seeing evidence to support them …
30. Also on December 8, a Senior Campaign Advisor—who spoke with the Defendant on a daily basis and had informed him on multiple occasions that various fraud claims were untrue — expressed frustration that many of Co-Conspirator 1 and his legal team’s claims could not be substantiated. With respect to the persistent false claim regarding State Farm Arena, the Senior Campaign Advisor wrote in an email, ‘When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases …’
32. On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his capacity as a candidate for President against the Georgia Governor and Secretary of State. In advance of the filing, Co-Conspirator 2 — who was advising the Defendant on the lawsuit — acknowledged in an email that he and the Defendant had, since signing a previous verification, ‘been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate’ and that signing a new affirmation ‘with that knowledge (and incorporation by reference) would not be accurate.’ The Defendant and Co-Conspirator 2 caused the Defendant’s signed verification to be filed nonetheless.
33. On January 2, four days before Congress’s certification proceeding, the Defendant, his Chief of Staff — who sometimes handled private and Campaign-related logistics for the Defendant — and private attorneys involved in the lawsuit against Georgia’s Secretary of State called the Secretary of State …
c. The Defendant claimed that 5,000 dead people voted in Georgia, causing the Georgia Secretary of State to respond, ‘Well, Mr. President, the challenge that you have is the data you have is wrong … The actual number were two …’
f. The Defendant said that he needed to ‘find’ 11,780 votes, and insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud as he demanded …
35. In his Campaign speech on January 6, the Defendant publicly repeated the knowingly false insinuation that more than 10,300 dead people had voted in Georgia. (Emphasis added.)
Smith highlights similar actions taken by the Defendant in his role as a candidate in states like Michigan, Wisconsin, and Arizona. Smith details the campaign’s attempts to marshal fraudulent electors to transmit false certificates to Congress:
53. On December 6, the Defendant and Co-Conspirator 2 called the RNC Chairwoman to ensure that the plan was in motion. During the call, Co-Conspirator 2 told the RNC Chairwoman that it was important for the RNC to help the Defendant’s Campaign gather electors in targeted states, and falsely represented to her that such electors’ votes would be used only if ongoing litigation in one of the states changed the results in the Defendant’s favor. After the RNC Chairwoman consulted the Campaign and heard that work on gathering electors was underway, she called and reported this information to the Defendant, who responded approvingly …
58. To manage the plan in Pennsylvania, on December 12, Co-Conspirator 1, Co-Conspirator 5, and Co-Conspirator 6 participated in a conference call organized by the Defendant’s Campaign with the Defendant’s electors in that state. When the Defendant’s electors expressed concern about signing certificates representing themselves as legitimate electors, Co-Conspirator 1 falsely assured them that their certificates would be used only if the Defendant succeeded in litigation …
62. On December 14, the legitimate electors of all 50 states and the District of Columbia met in their respective jurisdictions to formally cast their votes for president, resulting in a total of232 electoral votes for the Defendant and 306 for Biden …
63. On the same day, at the direction of the Defendant and Co-Conspirator 1, fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots in favor of the Defendant …
64. … shortly after the fraudulent electors met on December 14, the targeted states’ fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others. The Defendant and co-conspirators ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used.
In a section entitled “The Defendant’s Attempts to Enlist the Vice President to Fraudulently Alter the Election Results at the January 6 Certification Proceeding,” Smith emphasizes:
67. The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election. All of the conversations between the Defendant and Vice President described below focused on the Defendant maintaining power. When his efforts to use the Vice President’s role as President of the Senate failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C. to pressure the Vice President to fraudulently alter the election results …
72. On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution. The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, ‘You’re too honest’ …
80. Also on January 5 … When the Vice President refused to agree to the Defendant’s request that he use his position as President of the Senate to obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him …
81. That night, the Defendant approved and caused the Defendant’s Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: ‘The Vice President and I are in total agreement that the Vice President has the power to act.’
82. On January 6:
a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, ‘If Vice President @MikePence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!’
b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, ‘States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!’ …
86. Next, beginning at 11:56 a.m., the Defendant made multiple knowingly false statements integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification …
e. Finally, after exhorting that ‘we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,’ the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress ‘the kind of pride and boldness that they need to take back our country.’
In a section entitled “The Defendant’s Exploitation of the Violence and Chaos at the Capitol,” Smith writes:
90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.
91. A mass of people — including individuals who had traveled to Washington and to the Capitol at the Defendant’s direction — broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.
92. Beginning around 1:30 p.m., the Defendant, who had returned to the White House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at the Capitol.
93. At 2:13 p.m., after more than an hour of steady, violent advancement, the crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment …
94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’
95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.
96. At the Capitol, throughout the afternoon, members of the crowd chanted, ‘Hang Mike Pence!’; ‘Where is Pence? Bring him out!’; and ‘Traitor Pence!’ …
100. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden. (In violation of Title 18, United States Code, Section 1512(k))
COUNT TWO – (Conspiracy to Obstruct an Official Proceeding — 18 U.S.C. § 1512(k))
DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2). (In violation of Title 18, United States Code, Section 1512(k))
COUNT THREE – (Obstruction of, and Attempt to Obstruct, an Official Proceeding — 18 U.S.C. §§ 1512(c)(2), 2)
DONALD J. TRUMP, attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote. (In violation of Title 18, United States Code, Sections 1512(c)(2), 2)
COUNT FOUR – (Conspiracy Against Rights — 18 U.S.C. § 241)
DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States — that is, the right to vote, and to have one’s vote counted. (In violation of Title 18, United States Code, Section 241)
Jack Smith will soon see whether Judge Chutkan believes he has re-crafted the indictment to address the major objections of the Supreme Court. On September 4, 2024, The New York Times offered this look of what happens next:
After watching from the sidelines for nearly eight months as Mr. Trump’s lawyers fought their way up to the Supreme Court with what turned out to be a largely successful argument that he had broad immunity from prosecution on charges arising from his official acts as president, Judge Chutkan moved quickly to get pretrial proceedings moving again.
Not surprisingly, Smith and the Trump legal team offered significantly different timetables in their Joint Status Report. Smith suggested:
[T]he Government proposes that it file an opening brief in which it will explain why the immunity set forth in Trump does not apply to the categories of allegations in the superseding indictment or additional unpled categories of evidence that the Government intends to introduce at trial and will proffer in its brief. The Government’s proposed brief would provide the defendant and the Court with detailed information regarding the ‘content, form, and context,’ see Trump, 144 S. Ct. at 2340, of the defendant’s conduct, distinguish his private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the Court may deem official … After the Government’s reply, the Court can assess the parties’ arguments on that record and conduct any further proceedings it deems necessary to resolve immunity issues.
Not surprisingly, Trump signaled his intention to appeal and proposed a schedule stretching into 2025, suggesting they would offer a series of motions before a trial would even begin. Chutkan heard oral arguments, and as The Washington Post noted on September 5, 2024:
After a testy one-hour hearing in federal court in D.C., U.S. District Judge Tanya S. Chutkan granted a proposal by special counsel Jack Smith’s office to make its case about the limits of Trump’s immunity by Sept. 26, with other filings due in the weeks that follow … Chutkan’s decision gives the government an opportunity to lay out new evidence against Trump, though how much, if at all, they will choose to reveal in the run-up to the election remains to be seen.
In court, Trump defense attorney John Lauro had sparred with Chutkan over the schedule, arguing that the next two months is a ‘very sensitive time’ before Republican nominee Trump faces the Democratic nominee, Vice President Kamala Harris, at the polls. ‘It strikes me that what you’re trying to do is affect the presentation of evidence in this case in a way so as not to impinge on the election of the president,’ Chutkan told Lauro, after the Trump lawyer objected to an order that would let prosecutors make their case first. ‘This court is not concerned with the electoral schedule.’
As we await Judge Chutkan’s ultimate ruling, it is worth thinking about what Aristotle said: “Laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice.”
Despite the remarkable obstacles thrown in his way by the Supreme Court, Jack Smith and his team are still hard at work trying to satisfy the claims of justice.
