Jack Smith, in What Could Be Bad News for Trump, Readies To Slim Down His January 6 Indictment

Special Counsel Jack Smith’s eschewal of a sequence of unprecedented mini trials over immunity suggests that he is set to overhaul his January 6 case against President Trump. That could be bad news for the 45th president. Word that Mr. Smith will forgo the opportunity to call live witnesses and president evidence comes from Bloomberg News. That pivot follows the special counsel’s request for a three week delay in respect to furnishing Judge Tanya Chutkan with a path forward for Trump v. United States. A revised program became necessary after the Supreme Court ruled that presidential official acts are presumptively immune, while unofficial acts are bereft of immunity. Actions that are in the heartland of presidential prerogative, like the pardon power, are possessed of absolute immunity. The high court returned the case to Judge Chutkan to determine which acts in Mr. Smith’s indictment can be prosecuted and which ones are immune. The justices explain that “critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations.”It falls to Judge Chutkan “to determine in the first instance whether Trump’s conduct” is official or unofficial, and she solicited proposals from both the special counsel and Trump’s team regarding how she should design such a process. The immunity issue needs to be adjudicated before the jury trial can begin. Mr. Smith had urged the Supreme Court that the public possess a “compelling” interest in a verdict before the election. The case’s journey up and down the federal judiciary in the year since Trump was charged has precluded that possibility. If Trump wins in November, the case will likely die on the vine. A victory for Vice President Harris, though, could give the special counsel leeway to amend his prosecution with an eye to reaching a “guilty” verdict. President Trump talks on the phone to Vice President Pence from the Oval Office on January 6, 2021. House Select Committee via APThe mini trials, though, could have offered a forum for Mr. Smith to air evidence connected to January 6 in the months before November’s elections, painting Trump in a negative light. He also could have pushed to call to the stand witnesses like Vice President Pence and Chief of Staff Mark Meadows. Their testimony could have damaged Trump in the weeks before an election widely considered a toss-up.Efforts to summon both of those witnesses could have faced stiff resistance from the 45th president. The Supreme Court is on record that his interactions with Mr. Pence are presumptively immune, meaning that Mr. Smith must clear a high bar if he intends to base charges on them, or even marshal them as evidence. Mr. Meadows has, in his Fulton County criminal case, petitioned the Nine for some measure of immunity on account of his role of chief of staff. That claim could soon secure a high court hearing. If Mr. Smith demures from proposing that such hearings be held, it could be because he is planning for a more dramatic pivot from the indictment that he filed last summer. He — and Attorney General Garland — could reckon that the smoothest route to opening statements is not by contesting every bit of evidence adduced in the indictment. Rather, they could be readying a slimmed down charge sheet that could be more defensible before Judge Chutkan and on appeal if it focuses on purely unofficial acts.Trump, though, is likely to contend that Mr. Smith’s indictment is marbled with official acts such that even a stripped down one is unviable. That is the argument now before Judge Juan Merchan of Manhattan, who is due to decide next month whether the immunity ruling upends or leaves untouched Trump’s 34 criminal convictions in the Empire State. District Attorney Alvin Bragg has indicated that he does not oppose a delay to digest that challenge. If Judge Merchan, whose rulings have largely favored the prosecution, upholds the case against Trump, the former president could appeal.In making his case, Mr. Smith has the benefit of guidance from none other than Justice Amy Coney Barrett, who joined with the five other conservative jurists in granting Trump, and every president, immunity. During oral arguments in the case, she persuaded Trump’s attorney, John Sauer, to concede that working to “implement a plan to submit fraudulent slates of presidential electors” would be private, and therefore fair game. That possibility surfaces in the decision, written by Chief Justice Roberts for a six to three court. The majority allows that “a plan to submit fraudulent slates of Presidential electors to obstruct the certification proceeding” could form the basis of a conviction, even as Trump contends that those efforts were “undertaken to ensure the integrity and proper administration of the federal election.” Mr. Smith argues that the Constitution assigns no such responsibility to the president. The justices are agnostic, writing that “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.” They are less sanguine on the use of interactions with Mr. Pence or the Department of Justice in the case against Trump. Those materials, they rule, are protected by immunity. Mr. Smith could decide that they are more trouble than they are worth, and instead present Judge Chutkan with a leaner indictment tailored to prosper at trial.

Jack Smith, in What Could Be Bad News for Trump, Readies To Slim Down His January 6 Indictment

Jack Smith, in What Could Be Bad News for Trump, Readies To Slim Down His January 6 Indictment

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