DemDaily: Delayed Justice
October 3, 2024
Federal District Court Judge Tanya Chutkan on Wednesday unsealed a legal brief filed by the Department of Justice (DOJ) which reveals new and more damning details about Special Counsel Jack Smith's investigation into former President Donald Trump's efforts to overthrow the results of the 2020 election.
The 165-page. partially redacted court filing presents extraordinary new evidence about the former president's "private criminal scheme" to cling to power in the days after he lost the 2020 election -- culminating in the mob attack on the Capitol.
The revised indictment is in response to the July 2024 decision by the Supreme Court of the United States (SCOTUS) that Trump may claim “absolute immunity” from criminal prosecution for all “official acts” taken while in the White House. The 6-3 decision along ideological lines in Trump v. United States made a distinction between the official conduct of a president and the actions of a private citizen, who does not enjoy immunity.
The unprecedented ruling historically broadened the scope of presidential privilege -- therefore exempting some of the criminal charges originally filed against Trump in his August 2023 indictment.
| "The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role." - United States v. Trump |
Legal experts site "the strength of the corroborating evidence" in the brief as "explosive," including testimony from Trump's own circle, staff, attorneys and Vice President.
Smith focused on Trump’s state of mind and actions in the weeks leading up to the January 6, 2021 Capitol insurrection, and conversations proving that the then-president knew his claims of election fraud were spurious.
In the filing, he lays out evidence of Trump’s "increasingly desperate bid to stay in power," detailing his actions and those of his co-conspirators.
They included efforts to strong-arm state officials to overturn the election results, create false slates of electors claiming that Trump had won key states he actually lost, and wage a pressure campaign against Vice President Mike Pence, to throw the election his way during a proceeding to certify its final outcome on January 6.
Included are incriminating new details of Trump’s strained relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, when rioters overtook the US Capitol; and conversations with family members and others where the then-president refused to accept defeat.
| The is broken into four sections. The first section lays out the case prosecutors said they would attempt to prove at trial, including a summary of evidence; the second section gives Chutkan a roadmap for how to assess which actions are official – and therefore potentially covered by immunity – and which are not; the third section walks through how the principles should apply in Trump’s case; the fourth is a brief conclusion that asks Chutkan to rule that the actions described are not protected by immunity and that Trump “is subject to trial on the superseding indictment.” |
Delaying Justice: The Timeline
Trump was indicted August 1, 2023 by a DC District Court grand jury on charges arising from the Department of Justice's investigation into the federal elections interference conspiracy and January 6 attack on the Capitol.
The four criminal counts against Trump -- the first indictment against a US president concerning his actions while in office -- included 1) Conspiracy to defraud the United States under Title 18 of the United States Code; 2) Obstructing an official proceeding; 3) Conspiracy to obstruct an official proceeding under the Sarbanes-Oxley Act of 2002; and 4) Conspiracy against rights under the Enforcement Act of 1870.
He was arraigned in US District Court August 3 and Chutkan set a trial date of March 4, 2024. The judge denied a motion from Trump in early December to dismiss the charges based on his immunity defense, and Trump appealed to the US Court of Appeals for the DC Circuit.
In the interim, on December 11, Smith appealed to the US Supreme Court to fast-track a decision on the immunity question -- "One that has unique national importance here as it involves federal criminal charges against a former President" which "strike at the heart of our democracy."
On December 22, the high court declined Smith's request, letting the lengthy appeals process continue.
On February 8, the US Court of Appeals for the DC Circuit rejected Trump’s immunity claim, writing, "For the purposes of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."
Trump appealed to the Supreme Court, which agreed to hear the case. Historically SCOTUS has expedited cases of such constitutional significance. In 2000, in Bush v. Gore, the court issued its decision handing the presidency to George W. Bush the day after the justices heard arguments.
Trump's immunity appeal, however, was not heard until the final week of oral arguments in late April -- and the ruling was issued on July 1, 2024, the last day of the court's 2023-2024 term.
The decision by the court's conservative majority to slow-walk the case all but guaranteed that Trump's criminal case would not be heard until after the 2024 presidential election.
Justice Sonya Sotomayor, joined by fellow liberal Justices Kentanji Brown Jackson and Elena Kagan, issued a scathing dissent to the majority's ruling, writing that "the long-term consequences of today’s decision are stark."
| “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law...With fear for our democracy, I dissent.” - Justice Sonya Sotomayor |
SCOTUS sent the case back to the Federal District Court, instructing Judge Chutkan to determine which acts alleged in the indictment are "official," which are "unofficial," and which acts may be prosecutable.
Should Trump win the November election and reclaim the White House, he could order the Justice Department to drop its case against him. He cannot be prosecuted while in office.
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Sources: NBC, New York Times, CNN, ScotusBlog, Politico
