Trump’s Legal Jeopardy Is Rising Along With Kamala Harris’s Political Fortunes

The return on Friday by the Supreme Court of Special Counsel Jack Smith’s January 6 case to the United States Court of Appeals for the District of Columbia Circuit — which immediately passed it on to Judge Tanya Chutkan — throws into sharp relief the legal stakes of November’s election.President Trump, who was once riding high in the polls against President Biden, has also enjoyed a string of courtroom victories that saw him granted broad immunity from the high court. Judge Aileen Cannon, in a stunning ruling, found that Mr. Smith was unconstitutionally appointed and dismissed the 40 Mar-a-Lago charges against the 45th president.Now, though, Trump appears to be facing headwinds. Vice President Harris is surging in both national and swing state polls. The race is something like a dead heat, and she has ahead of her the choice of a vice president and the Democratic National Convention as opportunities for favorable publicity. Both Trump and his vice presidential choice, J.D. Vance, have appeared of late to struggle to find their footing. While no candidate relishes losing an election, a loss for Trump in November would deprive him of the pardon power as well as the ability to fire Mr. Smith. With at least another four years to pursue Trump, the special counsel — as well as state prosecutors, like District Attorneys Alvin Bragg and Fani Willis — would have time to steer their cases through layers of appeal to juries. Ms. Harris, who trumpets her record as a prosecutor, appears unlikely to pardon Trump should she win the White House. The return — remand is the legal term of art — of Mr. Smith’s January 6 case underscores that it has been delayed but not defeated. Judge Chutkan will be handed a case, Trump v. United States, that has been upended by the Nine’s ruling that presidents are presumptively entitled to immunity for their official acts, and entitled to absolute immunity for their core responsibilities. There is no immunity for unofficial acts. While Judge Chutkan will have an armada of pre-trial motions to contend with, the justices mandated that “questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.” That means that a “mini trial” could be in order, with Judge Chutkan adducing testimony and evidence from both Trump’s team and the government to determine the circumference of the former president’s immunity. These hearings will help Judge Chutkan determine which acts in Mr. Smith’s indictment are official and which are unofficial. The government can surmount the presumption of immunity, though the bar is high. If an act is judged immune, it not only cannot be charged — it cannot be used at trial as evidence. A similar process unfolded at Fulton County, where a former Trump White House chief of staff, Mark Meadows, sought, unsuccessfully so far, to remove his state criminal case to federal court.Discerning the acts that are official and those that are unofficial will likely involve painstaking litigation, and take months. The justices write that they are “a court of final review and not first view,” meaning that the trial judge, Judge Chutkan, is tasked with delivering a verdict on the acts that can be charged. Her decisions, though, will all be subject to review from the United States Court of Appeals for the District of Columbia Circuit and, possibly, the Supreme Court.Judge Chutkan will take up Trump v. United States in the wake of a reversal of her ruling finding that Trump lacked immunity. She found that Trump’s time as president did not give him the “divine right of kings” in respect of Mr. Smith’s accusations that he criminally conspired to overturn the results of the 2020 election. Now, she is tasked with presiding over “further proceedings consistent with the Supreme Court’s opinion.”Another issue in addition to immunity could soon occupy Judge Chutkan. Judge Cannon’s finding that Mr. Smith’s appointment was illegal applies only in south Florida, but Trump could cite that ruling at the District of Columbia. Such a petition could eventually find its way to the Supreme Court. Justice Clarence Thomas has signaled that he shares Judge Cannon’s skepticism with respect to Mr. Smith’s appointment. CNN reports that last month Judge Chutkan told one January 6 defendant — she has sentenced many of them harshly — that “we’re running up against another bitterly contested election. I wish I could go somewhere until it’s over, but I can’t.”________Correction: Judge Chutkan presides over Mr. Smith’s January 6 case. Her jurisdiction was misstated in the bulldog.

Trump’s Legal Jeopardy Is Rising Along With Kamala Harris’s Political Fortunes

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