Jack Smith’s Immunity Woes Could Derail What Trump Calls ‘Extreme and Fanatical’ Mar-a-Lago Prosecution

It’s not only the January 6 case that could be upended by the 45th president’s victory at the Supreme Court.

AP/Rebecca Blackwell
President Trump on March 5, 2024, at Mar-a-Lago at Palm Beach, Florida. AP/Rebecca Blackwell

The Supreme Court’s ruling that presidents are presumptively entitled to immunity for all official acts could not only wreck Special Counsel Jack Smith’s January 6 case against President Trump — it could throw into havoc the Mar-a-Lago one too.

That, at least, is Trump’s position, as evinced by a Friday filing asking Judge Cannon for “leave to file supplemental briefing regarding the implications” of the immunity decision, Trump v. United States, for the documents case. The 45th president reminds her that Chief Justice Roberts ruled that immunity questions must be resolved at “the outset of proceedings.”  

Trump also wants the proceedings stayed pending a ruling on immunity. He writes to Judge Cannon that such a pause will  “minimize the adverse consequences to the institution of the Presidency arising from this unconstitutional investigation and prosecution.” They also cite Justice Clarence Thomas’s concurrence questioning the constitutionality of Mr. Smith’s appointment, an issue now before Judge Cannon.

The former president cites a Washington Post report that Mr. Smith intends to prosecute Trump through a possible Election Day victory as evidence of an “extreme and fanatical … exploitation of judicial institutions and resources by Executive Branch personnel in connection with the shameful ongoing lawfare campaign.”   

The high court remanded Trump back to Judge Chutkan for fact-finding as to what actions in the Mar-a-Lago indictment are official and which are unofficial and therefore fair game to prosecution. That litigation appears set to take months. Mr. Smith bears the burden of piercing immunity for official acts. Now, Trump wants Judge Cannon to undertake the same course.

Trump, though, is likely to press the point that the immunity ruling must be accounted for everywhere that he faces prosecution. His attorneys have already dispatched a letter to Judge Juan Merchan at Manhattan, who was due to sentence the 45th president on July 11 for his convictions in the Stormy Daniels hush money case.

That session has now been scheduled for September 18, allowing for Judge Merchan to further metabolize the immunity ruling. In delaying the hearing, he surfaced the possibility that it may not be “necessary” after all. District Attorney Alvin Bragg’s office did not oppose the delay, though he deems Trump’s “arguments to be without merit” because the indictment turned on private acts.

An even stronger challenge to Mr. Smith could be ahead in south Florida. The special counsel’s Mar-a-Lago case before Judge Aileen Cannon has already been indefinitely delayed, and the prosecutor in June was forced through a gantlet of hearings challenging his request to restrict Trump’s speech, the constitutionality of Mr. Smith’s appointment, and the manner in which the government conducted the search of the Palm Beach manse. 

Trump faces dozens of charges for violations of the Espionage Act and obstruction laws for his retention of secret documents at Mar-a-Lago. Those alleged crimes, though, all date from his post-presidency, which would appear to put them outside of the high court’s ruling on immunity, which covers acts taken during one’s presidency, and then charged afterward. 

Mr. Smith convened a grand jury at the District of Columbia, possibly to indict for actions Trump took there, but that body did not end up charging the 45th president for taking documents from the White House. A judge at Washington ruled that prosecutors could access the notes of one of Trump’s attorney’s, Evan Corcoran. Judge Cannon plans to hold her own hearings on whether she will abide by that decision or render her own. 

Central to a potential Trump challenge to the Mar-a-Lago charges is the Supreme Court’s holding that official acts are not only presumptively immune — they also cannot be used as evidence to build a case for charges with respect to unofficial acts. It was on this point that Justice Amy Coney Barrett broke with her conservative colleagues. “The Constitution,” she writes, “does not require blinding juries” to the circumstances of a chargeable crime.

While Trump has not fully fleshed out his defense in the case — pre-trial briefing has mostly focused on motions to dismiss relating to the execution of the warrant and Mr. Smith’s status — it seems likely that his arguments to Judge Cannon and the jury will lean on his purported entitlement to the document. He has already claimed that the Presidential Records Act, passed in the wake of Watergate, entitled him to designate as “private” any record he chooses.

Mr. Smith has vehemently contested this interpretation of the PRA, and maintains that the criminal law applies to Trump’s conduct. Judge Cannon, though, has expressed interest in furnishing jury instructions that allow for the possibility that the PRA applies. The special counsel claims that such an instruction would “distort the trial” because it rests on “an unstated and fundamentally flawed legal premise.”

With the Supreme Court ruling in hand, Trump will likely ask Judge Cannon to exclude any evidence that dates from his time in office or how the documents in question reached his estates. Judge Cannon has already struck from the indictment an incident where Trump is alleged to have shown an aide a map and told her that “ he should not be showing it to the representative and that the representative should not get too close.” That could have suggested that Trump knew he was acting unofficially. 

Judge Cannon, though, agreed with Trump that the incident — which Mr. Smith did not charge — was prejudicial, and intended just to compromise the 45th president’s character. Let intact in the indictment, though, is an episode at Bedminster where Trump allegedly discussed battle plans on Iran. A recording captured him referring to “these papers” and explaining that  “as president I could have declassified it. Now I can’t, you know, but this is still a secret.”

Mr. Smith’s efforts to draw a line between official and unofficial acts —as mandated by the Supreme Court — could be most successful when Trump has already acknowledged that distinction himself. 

The New York Sun

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