Jack Smith’s Effort To Plumb Trump’s Intent on January 6 Could Earn Special Counsel a Rebuke at the Supreme Court

The possibility that Special Counsel Jack Smith ignored a key part of the Supreme Court’s landmark immunity ruling could set the prosecutor up for more heartbreak before the Nine. President Trump’s response to Mr. Smith’s 165-page immunity brief is due on Thursday. The special counsel asserts that Trump “must stand trial for his private crimes as would any other citizen.” The 45th president will aim to convince Judge Tanya Chutkan that the case is precluded by the justices’ ruling that official presidential acts are presumptively immune. Trump’s team calls Mr. Smith’s work a “false hit job” and a “monstrosity” that is “politically motivated.”Chief Justice Roberts’s majority opinion returned the case, Trump v. United States, to Judge Chutkan to determine which acts alleged by the special counsel are immune and which ones are bereft of protection. The high court also handed down instructions to guide Judge Chutkan — and any other jurist — assigned to discern immunity. One of those is that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”That absolute interdiction, which binds Judge Chutkan and will hold for any appellate review, is noted in an op ed article in the Wall Street Journal by two legal sages, David Rivkin and Elizabeth Price Foley. They accuse Mr. Smith of committing a “critical legal error” by trespassing into the reaches of Trump’s mind — and purporting to know his intent.If Judge Chutkan greenlights this approach, she could be at risk of a reversal at the high court, for a second time, on the issue of immunity. Her finding that presidential action possessed no immunity was overruled by the high court’s six-justice majority. The majority’s walling-off intent prompted fierce dissent within the court itself. Justice Sonia Sotomayor’s baleful opinion lamented that under the majority’s immunity regime “any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.” She reckons that the high court’s “extraordinary rule has no basis in law.”Justice Sotomayor unspools a hypothetical where a president “hires a private hitman to murder” a political rival after declaring “in an official speech that he intends to stop” that rival from “passing legislation that he opposes, no matter what it takes to do so.” She reasons that “under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder.”Mr. Smith’s opus acknowledges that a “President’s motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations,” but it could be argued that the special counsel honors the prohibition more in the breach than the observance. He accuses Trump of a “throughline” of “deceit” and making “knowingly false claims of election fraud.”The special counsel also accuses Trump of a “corrupt strategy to overturn the legitimate election results,” an allegation that appears to suggest intent. The 45th president frequently used that word — “corrupt” — to describe the administration of the 2020 election, and its usage in connection to the vote goes back to Alexander Hamilton in 68 Federalist, who wrote that the Framers were “wary of cabal, intrigue, and corruption.” The Supreme Court, though, demands that determinations of immunity be made only by an “objective analysis” that focuses on the “content, form, and context” of a given presidential act. A challenge for Mr. Smith is that one of the charges on which he aims to convict Trump, an obstruction statute originally passed as part of the Sarbanes-Oxley Act, requires a showing that the defendant acted “corruptly.” Freshly minted Supreme Court precedent would appear to be in conflict with black letter statutory law.Mr. Smith’s second indictment, crafted in the wake of Trump — and meant to survive its holding — also appears unbothered by the prohibition on intuiting intent. The government accuses Trump of a “corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified.” It also accuses Mayor Giuliani, identified as Co-Conspirator 1, of orchestrating a “presentation to a Judiciary Subcommittee of the Georgia State Senate, with the intention of misleading state senators.” Mr. Giuliani, though, is not protected by presidential immunity.The special counsel’s seeming skirting of the issue of intent is echoed by his inclusion of material relating to Trump’s interactions with Vice President Pence despite Chief Justice Roberts’s ruling that such colloquies are presumed immune. Mr. Pence features prominently in Mr. Smith’s two major filings in the case — his slimmed-down indictment and his book-length brief on immunity. Both of those were written in response to Trump.Mr. Smith likely reckons that these two documents root his case in the sphere of private action enough to obviate the Supreme Court’s concerns with respect to the peril of prosecuting presidents. He could be correct with respect to Judge Chutkan, who has repeatedly ruled in his favor. The high court, though, could find that the special counsel has ignored its mandate.

Jack Smith’s Effort To Plumb Trump’s Intent on January 6 Could Earn Special Counsel a Rebuke at the Supreme Court

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