President Trump, Jack Smith, and the Case of the ‘Outer Perimeter’

President Trump’s call, on Truth Social, for the Supreme Court to “intercede” in the January 6 criminal case against him could prefigure a formal appeal and underscores the unpredictability of the path ahead in a case without parallel in American history. United States v. Donald J. Trump is unusual not just for the profile of its defendant, but also for the facts to which Special Counsel Jack Smith will have to match his theories of Mr. Trump’s culpability if he is to secure a conviction. The demands of his case could provide ample opportunity for high court intervention. The collision between prosecutor, former president, and high court is not hypothetical. A petition has been lodged by three January 6 defendants who have been charged with the same crime as Mr. Trump — conspiracy to obstruct an official proceeding. Its origins lie in the Sarbanes-Oxley Act of 2002. Of the four counts in Mr. Trump’s indictment, two derive from this statute.The petitioners — one of whom, Edward Jacob Lang, tells the Sun that he sees the case as “the most important of the last decade” — argue that the obstruction charge is unlawful as applied to the events of January 6, 2021. The filing notes that the “future of the First Amendment hangs in the balance. A statute intended to combat financial fraud has been transformed into a blatant political instrument to crush dissent.”One of the charges levied by Mr. Smith, conspiracy against rights, is expressly constitutional and thus could be catnip for the court. Mr. Trump is accused of conspiring to “injure, oppress, and threaten” the “free exercise and enjoyment of a right and privilege secured” to voters “by the Constitution and laws of the United States,” meaning the “right to vote and have one’s vote counted.”While the justices will decide next month whether to take up Mr. Lang’s petition to have the obstruction charge tossed, the petition’s invocation of the First Amendment could preview a broader litigation strategy, one that could be deployed either via a traditional appeal made after a conviction or by an emergency appeal made in advance of a verdict.Mr. Smith’s indictment acknowledges Mr. Trump’s constitutional right “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.” It distinguishes that speech, though, from “unlawful means of discounting legitimate votes and subverting the election results.” One of Mr. Trump’s attorneys, John Lauro, took to CNN to argue that “there’s nothing that’s more protected under the First Amendment than political speech.” He told Fox News that the indictment was an “assault” on freedom of speech. In these pages, David Harsanyi describes the charges as products of “last-minute novel legal reasoning.”The Sun spoke to a constitutional law professor, Joshua Blackman, who observes that Mr. Smith was “prudent in not bringing a criminal incitement claim,” which would have fronted the speech issue. The indictment, he adds, is “careful to limit” its evidentiary basis, focusing on asides to advisers rather than public statements. He adds that the indictment reads like a “Tom Clancy novel.” The high court has never ruled on, in Mr. Smith’s words, a president obstructing a “bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.” Mr. Trump argues that he is being targeted “so it becomes difficult for me to campaign,” and asks, “Must be Unconstitutional?”That same argument finds its way into Mr. Lang’s petition, where he argues that his prosecution — and, he tells the Sun, Mr. Trump’s — serves to “chill political speech and expression on the eve of one of the most consequential events in American life — the election of the next President of the United States.”Mr. Blackman speculates that Mr. Trump could argue that the entire suite of his post-election efforts to undo the outcome were subsumed under the Constitution’s mandate that the president “take care that the laws be faithfully executed.” Such an approach would assert that his behavior was part of his job, not an exercise in criminality.Mr. Blackman observes that “where criminality ends, the First Amendment begins,” meaning that the line of scrimmage in the case will be whether the underlying actions comprised in the indictment are criminal. If they are, the constitutional protections for speech fall away. To mount such a defense, Mr. Blackman explains, Mr. Trump would have to persuade a judge, a jury, and possibly a majority of the justices that he believed the election was marred by fraud. The professor expects the former president to maintain that his course of action was advised “by prominent lawyers.”Six of those now face indictments themselves, as unnamed co-conspirators. It’s possible to imagine that the possibility of indictments of those prominent lawyers — allegedly Mayor Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro, and Boris Epshtyn — underscores the degree to which Mr. Trump was relying on their advice.While prosecutors are likely to retort that the Department of Justice advised against Mr. Trump’s efforts, Mr. Blackman reminds that the “DOJ works for the president, who isn’t obliged to listen to them,” and is free to seek outside counsel, a freedom that many presidents of America have chosen from time to time. He adds that “generally, a president’s actions are immune.”If called upon to rule on how presidential immunity affects Mr. Trump’s case, the Nine could look to one of their own precedents. A 1982 case, Nixon v. Fitzgerald, recognized “absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”A rash of civil suits filed by Democratic lawmakers and Capitol Hill police officers seek to hold Mr. Trump liable for January 6. Those have thus far evaded motions to dismiss by persuading jurists that Mr. Trump’s actions were not “official acts.” One judge, Amit Mehta, ruled, “To deny a President immunity from civil damages is no small step,” but the “alleged facts of this case are without precedent.”Reflecting on the indictment, Mr. Blackman characterizes it as a “careful” one that did “not bring the kill shot,” meaning a charge for insurrection, which could have resulted in Mr. Trump being banned from holding office again as well as put behind bars. Instead, they streamlined the case to “get to a verdict as quickly as possible.”

President Trump, Jack Smith, and the Case of the ‘Outer Perimeter’

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