Jack Smith’s New January 6 Indictment Against Trump Could Be Trouble for Fani Willis — If She Fights Off Disqualification Over Secret Romance

Special Counsel Jack Smith’s new slimmed-down indictment could augur trouble for the sprawling racketeering prosecution by the Fulton County district attorney, Fani Willis — if she manages to stay on the case.The possibility that the federal case could be prelude for the Georgia one takes on added salience in the wake of Ms. Willis’s erstwhile special prosecutor, Nathan Wade, accompanying her to the roadside arrest, for driving with a suspended license, of her pregnant daughter. President Trump argues that Ms. Willis and Mr. Wade’s secret love affair, which involved more than $650,000 flowing from the district attorney’s office to the prosecutor, warrants disqualification. The two have said their relationship was over. Mr. Smith’s superseding charge sheet against President Trump retains the same four charges as the original, though it is nine pages shorter. He trimmed it to comply with the Supreme Court’s ruling, in Trump v. United States, that all presidential official acts are at least presumptively immune, with some enjoying “absolute” immunity. Unofficial ones are bereft of immunity.A courtroom sketch depicting President Trump, right, conferring with defense lawyer Todd Blanche, center, and Special Prosecutor Jack Smith, left, at the Federal Courthouse at Washington, August 3, 2023. Dana Verkouteren via APThat ruling applies to state as well as federal prosecutions, and Trump has already mounted the argument with respect to his hush money convictions at Manhattan that immunity ought to frustrate District Attorney Alvin Bragg’s efforts to send him to prison. That contention awaits adjudication from Judge Juan Merchan —and possibly an appellate court or two. The special counsel, in trying to streamline his indictment, cut those portions that relate to the 45th president’s efforts to pressure the Department of Justice to overturn the results of the 2020 election. The Supreme Court determined that those interactions were at the heartland of presidential prerogative, and absolutely immune. Mr. Smith likely reckoned that even if Judge Tanya Chutkan admitted them into evidence, she would be overruled on immunity by the justices for a second time.Fulton County District Attorney Fani Willis looks on during a hearing at the Fulton County Courthouse on March 1, 2024, at Atlanta. Photo by Alex Slitz-Pool/Getty ImagesThe justices explain that “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.” Chief Justice Roberts writes that the DOJ is within the “conclusive and preclusive” authority of the president as an arm of the executive branch whose power is entirely vested in the president.Mr. Smith took the hint and also removed from the indictment mention of a Trump Department of Justice official, Jeffrey Clark, who had previously been referred to as an unindicted co-conspirator. Also playing a more minor role in the new indictment is Chief of Staff Mark Meadows, who now only figures glancingly. Mr. Meadows, while not formerly affiliated with the DOJ, is mounting an immunity argument as well. Special Counsel Jack Smith on August 1, 2023 at Washington, DC. Drew Angerer/Getty ImagesMs. Willis has charged Messrs. Clark and Meadows, along with Trump and more than a dozen others, with working to overturn the results of the 2020 election in the Peach State. Now, those two defendants could use Mr. Smith’s changes as persuasive evidence that the case against them has been hobbled by Trump. Both have already signaled that they intend to do so. Mr. Clark is facing the prospect of losing his license to practice law in the District of Columbia after a disciplinary board recommended it be suspended for his actions on January 6. Last week, his attorneys wrote to an appeals court that his removal from Mr. Smith’s indictment means that “Mr. Clark is not just unindicted, but unindictable” on account of immunity. He has also tried to remove Ms. Willis’s case to federal court, where he would likely mount a similar argument.The Fulton County district attorney, Fani Willis, and her then-special prosecutor, Nathan Wade, on August 14, 2023, at Atlanta. Joe Raedle/Getty ImagesMr. Meadows has already done just that, petitioning the Supreme Court to deliver her from a Fulton County courtroom to a federal one, notwithstanding that he faces prosecution for alleged crimes against Georgia law. He argues that his case belongs in federal court — which would bring a more favorable jury pool — on account of the high court’s ruling in Trump. Meadows writes that the “Chief of Staff is a unique federal officer, the top aide to a coequal branch of government personified by the President.”Then of course there is Trump himself, who will likely argue that he is immune from the entirety of Ms. Willis’s prosecution. It is not all bad news for her, though. The justices in general — and Justice Amy Coney Barrett in particular — did not take a stand on whether the president’s interactions with state officials were immune. That leaves the field clear for Mr. Smith and Ms. Willis to make the case that Trump’s colloquy with, say, Georgia Secretary of State Bradley Raffensperger is fair game as evidence.First Ms. Willis will have to convince the Georgia Court of Appeals to deny Trump’s motion to disqualify her and dismiss the charges on account of her romantic affair with Mr. Wade, which now appears ongong. The 45th president also alleges that extrajudicial comments where she accused her opponents of “playing the race card” amount to a poisoning of the jury pool. Ms. Willis contends that there has been nothing amiss in her stewardship of the case. The trial court judge, Scott McAfee, ruled that she could persist if Mr. Wade stepped aside. This article has been updated from the bulldog.

Jack Smith’s New January 6 Indictment Against Trump Could Be Trouble for Fani Willis — If She Fights Off Disqualification Over Secret Romance

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