8 posts from Saturday, December 16, 2023

Shh. There's an election coming, but you'll never hear Jack Smith say so. I'm Michael Smirkanis in Philadelphia. The Supreme Court is about to have more influence on the outcome of a presidential election than at any time since the 2000 decision in Bush versus Gore. And that's for a couple of reasons. First, Monday Special Counsel Jack Smith asked the court to bypass the appellate level and make a decision now about whether Donald Trump is entitled to immunity for alleged criminal acts committed while he was president. And separately, this week, SCOTUS agreed to hear a challenge to a law used to prosecute hundreds of January 6 defendants for obstructing or impeding an official proceeding which could impact Smith's prosecution against Trump on those charges. Here's what's interesting to me. Nowhere in the government's petition is there any specific reference to the 2024 presidential election, but that's clearly what is driving Smith's request. In making his case, here's what he told the court. "This case presents a fundamental question at the heart of our democracy, whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin." The justices have already agreed to fast-track Smith's request that they decide if a ruling is now appropriate. Trump's lawyers have until next Thursday to respond. As noted in the petition, Trump is scheduled to begin trial before the Honorable Tanya Chutkin in the D.C. District Court on March 4, 2024. Well, the following day, March 5th, is Super Tuesday. Republican voters in 15 states including California, North Carolina, Tennessee, Texas, Utah, and Virginia will cast their nomination ballots on that day. If that trial date stands, it means Trump's case will be heard seven months after his indictment, in contrast to many January 6th defendants who will have had nearly two years to prepare for trial. And in Trump's case, his lawyers estimate that there are 13 million pages in the discovery process. Here's how Smith justified his expedited request. There was a heading in his petition. It said, "This case warrants this court's immediate review." And he offers this argument in reference to Supreme Court Rule 11, "A writ of certiori before judgment is appropriate when the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court." As to why the rush, here's what Smith wrote, "If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months. Even if the decision arrives sooner, the timing of such a decision might prevent this court from hearing and deciding the case this term." What does that mean? It means Trump could win the election and order all charges be dropped or self-pardon ending this prosecution forever, which explains why the coming election is the Voldemort of the legal request. Smith no doubt recognizes that there's already a perception among many voters that this prosecution and the other three criminal prosecutions as well as the New York Civil Fraud case and the several efforts to disqualify Trump under the 14th Amendment are all providing Trump with a political benefit. How else to explain that in the latest Iowa poll from the Des Moines Register, Trump has 51% of the Republican vote. His next competitor is Ron DeSantis with only 19%, followed by Nikki Haley with only 16%. Or that according to CNN polling, in a head-to-head with President Biden, Trump leads by 10 points in Michigan and 5 in Georgia. A core principle of the DOJ is to never act in a way that will be perceived as political, especially within 60 days of an election. Is Jack Smith being political when he acts with an eye toward the election calendar as is plainly the case here? Or is he simply fulfilling his role as a prosecutor who wants to ensure that a case that he's worked up actually gets to a jury? That is the Rorschach test. And now Smith faces a bigger obstacle than accusations of politicization, the delay and even possible dismantling of his case while SCOTUS reviews the immunity and obstruction charges. As the New York Times reported this week, the obstruction count was never a good fit for what happened on January 6th. It was originally passed as part of a corporate governance law that forbade things like destroying documents or tampering with witnesses. But prosecutors used it in lieu of more politically contentious charges like insurrection or sedition to describe how the mob disrupted the election certification at the Capitol. If the Supreme Court rules that the statute was improperly stretched to cover Trump's involvement in that disruption, it would be bad news for the government. Indeed, it could cripple Smith's attempts to pin the violence of January 6th on Trump. Amidst the dispute about the timing of the immunity case, Judge Chutkin has issued an order that, quote, "further proceedings that would move this case-cord trial will be paused until the appellate issues are resolved," which is exactly what Donald Trump wants. Like so much else in this election cycle, it is complicated, it is unprecedented, it is unpredictable. I want to know what you think. Go to my website at smirkhandish.com and answer today's poll question, "Will Donald Trump face any criminal trial before election day?" Joining me now is Ellie Honig, the CNN legal analyst, former prosecutor in the Southern District of New York, and author, most recently of the book Untouchable, How Powerful People Get Away With It. Ellie, so great to have you here. Do you agree with me that Smith and Judge Chutkin are acting based on the election schedule? I do agree with you, Michael, and I think any fair-minded observer has to agree with that as well. Just look at Jack Smith's conduct in this case. The motivating principle behind every procedural request he's made has been speed, has been getting this trial in before the election. Let's take a couple examples. The trial date. The average federal conspiracy and fraud trial takes about a year and a half to two years between indictment and trial. In this case, we have dozens, hundreds of January 6th rioters caught on video, straightforward cases. They, too, were given about a year and a half to two years between indictment and trial. Jack Smith originally requested a trial date for Donald Trump, a far more complex case, five months out. He wanted a January trial. It was set for two months later. So Donald Trump is being given far less time to prepare than other defendants and the actions this week. Jack Smith won an argument on immunity in the district court and then went right to the Supreme Court. I think a right move. I think the smart move. The only reason you asked the Supreme Court to do that on an expedited basis is if you're racing against the clock and Jack Smith clearly is doing that here. Okay. I referred to the election as the Voldemort of the petition that he filed. Why not say that? Why not simply say there's an election on the horizon and I'm afraid this guy's going to get away. You will never hear either Jack Smith or Judge Chukkin utter the E word election. They will not specifically say it. Instead, they use this sort of euphemistic language about the need for resolution, that kind of thing. Here's why I think Jack Smith is not willing to do it. Two reasons. First of all, DOJ rules, unwritten and written, both say you are not supposed to do anything that could impact an election. In fact, you are supposed to affirmatively try not to take steps that might impact an election. And the second thing, and I think Jack Smith is right about this, is if he is to say, okay, judge, we really need to try this case before the election, Donald Trump is going to seize on that aggressively. He's going to say, see folks, when I tell you this is political, Jack Smith has now admitted that he wants me tried before the election and that's political. So I think he's very wary of that. Okay. So then evaluate the, we agree. We agree that he is acting, Judge Chukkin is acting with an eye toward the election calendar. Now I want to hear L.A. Honig assess the propriety of him doing exactly what he's doing. Because on one hand you could say, well, he's being political. On the other hand, I guess you would say, Ellie, like you, probably back in the day, he's an aggressive prosecutor. He's worked the case up. He wants to get before a jury. Right. I don't like the artifice here. I don't like the game playing the wordsmanship that we're seeing. I think Jack Smith ought to just come out and say it or not. Here's the arguments both ways. First of all, if Jack Smith is trying to get this case tried before the election and he clearly is, look, that is political. I mean, the counter argument would be, well, Jack Smith just wants the American voters to have resolution before they go to the ballot box. And I understand that. As a voter, I would like to know. But here's the problem with that argument, Michael. Jack Smith doesn't just want to get this trial done and let the chips fall where they may and let the consequences be what they can be. He's the prosecutor. He believes this case. He wants this case to result in conviction. And so his position isn't just, well, I want this case tried before the election. His position really as a practical matter is I want Donald Trump convicted before the election. I have no problem with the first part of that. It's his job to want and try to convict Donald Trump now that he's indicted. But the second part of that before the election, that's where it crosses the line to the political, in my view. Ellie, Jack GPT tells me, so take it perhaps with a grain of salt, that between January 6th and today is 1,074 days. The point needs to be made that if Smith is now racing against the clock, I argue he had a big window to bring his case a hell of a lot sooner than he actually did and wouldn't now be facing the time constraint. So I don't see this as Jack Smith's fault. It took him about seven, eight months to indict. I see this as Merrick Garland's fault. Merrick Garland wasted about a year and a half, two years before he got serious and appointed Jack Smith. But you're absolutely right, Michael. We are now in this calendar crunch. DOJ, we're about to turn the corner into 2024. They're trying to cram in these trials and it's looking increasingly like we're only going to get maybe one trial if that. The analogy I would make is this for what DOJ did. If you lived a half hour away from the airport and you had a four o'clock flight, it's like leaving your house at 3.15 p.m. You are leaving yourself with no wiggle room if things go wrong and things always do. This is what happened with DOJ. They waited two years before they got serious and appointed Jack Smith. He moved fairly quickly, but the fact of the matter is by the time they dropped this indictment, they had wasted two and a half years leaving themselves with almost no wiggle room and now we're feeling that crunch on the calendar.

Transcribed automatically. Expect errors in names and numbers.

We watch out, we watch out, we watch out, we watch out.

Transcribed automatically. Expect errors in names and numbers.