Jack Smith Can Still Hurt Donald Trump

Photo: Ricky Carioti/The Washington Post/Getty Images

I remember vividly the first time I lost a key piece of evidence. The New York police had arrested our defendant in Washington Heights with a fake police badge around his neck and a loaded gun in his belt, and we charged him with federal firearms offenses and armed robbery conspiracy. Better yet (for us, the prosecution), we brought a cooperating witness to testify that he and the defendant had committed two armed robberies together by impersonating police officers and ripping off drug dealers.

About a week before the trial began, the judge held a conference to sort out routine pretrial paperwork. I confidently outlined the expected testimony of the cooperators. It’s over, the judge said nonchalantly. Too prejudicial. For those who think that every court decision is rendered in scholarly prose, filled with in-depth analysis and citations of applicable precedents: welcome to the real world.

That was a kick in the gut. That's really bullshit. He can't do that, I groaned afterwards. Of course he can, my supervisor replied. He's the judge.

My experience is a miniature version of what the United States Supreme Court did to special counsel Jack Smith and his 2020 election subversion case against Donald Trump. The court declared, for the first time in our history, that a president is entitled to criminal immunity for official acts. That part was no surprise; the law has long recognized civil immunity, and the justices, in oral arguments, seemed in no mood to uphold the lower courts’ outright dismissal of Trump’s claim.

But the breadth of the Supreme Court’s decision is astonishing. The majority held, for example, that to distinguish official from unofficial conduct, courts cannot inquire into the president’s motives. (It’s unclear how a judge is supposed to make this crucial distinction.) And the Court held that if conduct is exempt from liability, prosecutors cannot base a criminal charge on it or mention it at all during the trial, even as necessary context or background.

The case is now back in the lower court, before Judge Tanya Chutkan. She originally wanted the parties to be before her again today, but Smith asked for a few more weeks to get his act together; he has clearly accepted that there will be no pre-election trial, despite his dogged efforts. Trump’s lawyer, ever determined to slow things down, happily agreed to the prosecution’s request to postpone the case. When the court reconvenes on September 5, it will be up to the judge to sort through the cases and determine what can be salvaged.

On this issue, the Supreme Court has given specific guidance, and it does not bode well for the heart of Smith’s indictment. Trump’s efforts to compel the Justice Department to produce evidence of nonexistent election fraud? That is almost certainly an official act, and thus totally immune and off the case. Trump’s pressure campaign targeting his vice president, Mike Pence? Probably off the table. And Trump’s public statements, including his tweets and his January 6 Ellipse speech? Probably off the table, too.

The Supreme Court pointedly reminded Judge Chutkan that it was not impressed with her work so far and that it would be watching her closely. The majority castigated the lower courts for the speed with which this case was handled, the lack of factual analysis, and the absence of relevant information from the parties. Indeed, as we have noted here before, Smith, Chutkan, and the intermediate appeals court judges attempted to short-circuit the ordinary procedure to get Trump tried before the election; the Supreme Court noticed and disagreed. More importantly, on the crucial issue of timing, the Court clarified that Trump can appeal Judge Chutkan’s rulings on what conduct is (and is not) immune, before the trial begins. That means, in practice, there is a zero-point-zero percent chance that this trial will take place before the November 2024 election.

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If you’re hoping that Trump will be held accountable for trying to steal the 2020 election before voters go to the polls for the next one, don’t despair entirely, either. (For the record, I’m with you. The real problem is that the Justice Department took more than two and a half years to prosecute the case.) Judge Chutkan can still order, and I believe will order, a hearing to allow Smith to present some of his most explosive evidence before voters go to the polls.

The judge must now sift through the prosecution’s evidence and determine how much of Trump’s alleged conduct was an official act (and thus an immunity), and how much conduct can stand in the case. She has some leeway here. The judge could choose to take submissions from both sides, detailed statements from the lawyers about what they expect from their evidence. That’s a bit flat, but it’s also perfectly permissible and effective. And then there’s the more sensational alternative: The judge could allow Smith to call witnesses live to explain on the stand what their testimony would be like at trial.

I expect Smith to push for door number two, and Judge Chutkan to agree. If that happens, prepare for a series of dramatic courtroom showdowns. We could see Trump’s former chief of staff, Mark Meadows, take the stand to give his first public account of what his boss did (and didn’t do) before and on January 6. And Mike Pence could testify about how Trump begged and eventually threatened him to rig the election and how, on January 6, he had to run for his life to avoid the angry mob.

No, an evidentiary hearing won’t have as much impact as a jury trial and verdict. And we won’t see or hear any of it, because federal courts don’t allow cameras or live audio. (That’s fair enough, considering it’s apparently 1892 right now.) We probably already know the most damaging information, as it came to light in 2022 during the unforgettable January 6 Select Committee hearings in Congress and the 800-plus page report that followed. But really, imagine: Trump’s own former chief of staff and vice president taking the stand in, say, September of an election year, to describe firsthand how his former boss trampled the Constitution to try to steal an election. Even if we all know most of the story by now, that simply can’t be good for Trump at the polls, just weeks before voters cast their ballots.

It’s unclear how well Smith’s case will survive the Supreme Court’s attacks. He could end up being tried on a ragged indictment focused on Trump’s efforts to pressure state and local officials, with no damning evidence about the Justice Department, the vice president, and the incitement of the crowd at the rally. Or the wounds inflicted by the Supreme Court could ultimately prove fatal.

But if Smith's goal is to expose Trump's conduct to the American public before the election, and let's face it, that has clearly been a driving force for the special counsel all along, despite his refusal to acknowledge it, there will always be a circuitous path to partial success.

This article also appeared in the free CAFE Brief newsletter. Find more law and policy analysis by Elie Honig, Preet Bharara, Joyce Vance and other CAFE contributors at CAFE.com

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