The U.S. Supreme Court, on July 1, at the closure of their term, dealt a significant blow to Special Prosecutor Jack Smith’s two legal proceedings against ex-President Donald Trump. He placed a superseding indictment versus Trump, superseding the previous charge in Washington, D.C., well-timed for the commencement of early voting for the approaching November election. Importantly, Smith presented his argument to a freshly assembled grand jury and tweaked the indictment to correspond with the Supreme Court’s decree on presidential immunity in the case Trump v. United States. Notably, the accusations brought against Trump persist almost identical to the antecedent one.
Trump stands accused by Smith of having a ‘resolute intention to maintain power’ during the critical two-month period following the November 3rd, 2020 election. Additionally, he is alleged to disseminate ‘untruths that there existed a fraudulent activity that determined the election’s outcome.’ The indictment contends that ‘These statements were inaccurate, and the Defendant was aware of their falsehood.’ However, confirming someone’s mindset is not as straightforward as it might seem.
On their part, Trump’s legal counsel will be granted the chance to showcase evidence of inconsistencies and infractions in voting reported to Trump at the time. On the other hand, Smith’s representation will not be allowed to inform a jury that Justice Department officials under Trump’s administration notified the then-president that there was no fraudulent activity. The judiciary stated that the president’s discussions with his appointees, inclusive of conversations about appointing and letting go of his appointees, fall within the president’s core activities and are hence safeguarded by complete immunity.
The question of Trump’s mindset is crucial to the issue of immunity. If Trump held the belief that the election involved fraudulent activities, he could be said to be functioning in his official role as president, ensuring the faithful execution of laws, by attempting to postpone the election certification to permit states to investigate further. On conversely, if Trump ‘was aware’ of the absence of ‘outcome-decisive fraudulent activities,’ he could then arguably be behaving as an election candidate, his actions being unofficial and as a result, not safeguarded by immunity. To decipher this, the court might need to consider every piece of evidence of alleged election fraud or illicit voting across several states.
This examination precedes the judicial engagement with the charges put upon Trump, which include: ‘conspiracy to defraud the United States,’ ‘conspiracy against rights,’ and ‘obstruction of and attempt to obstruct an official proceeding’ and, lastly, ‘conspiracy to obstruct an official proceeding.’ The last two charges related to obstructing an official proceeding raise eyebrows given the Supreme Court’s June verdict in Fischer v. United States. The judiciary argued that to demonstrate a breach of the law — 18 U.S.C. Section 1512(c)(2), the prosecution must establish that the defendant somehow negatively affected the integrity or availability of records or other things used in an official proceeding.
Trump’s legal representation retains the right to challenge Jack Smith’s application of evidence which they assert is safeguarded by presidential immunity. Subsequently, the side that loses the case can proceed with an appeal up to the Supreme Court. It is clear that no resolution will likely come within the two months remaining before the election. On a separate note, Smith’s additional case against Trump, a trial in Florida concerning presidential records kept at Mar-a-Lago, has been dismissed on the basis that the special counsel was illegally appointed and the office is unconstitutional.
An appeal against the dismissal ruling has been lodged by Smith recently, but the case that the attorney general’s appointment of a special counsel is unconstitutional was underscored by Supreme Court Justice Clarence Thomas in his concurrent opinion in the Trump immunity case. Hence, the appeal may not progress significantly. In New York, sentencing for Trump has been planned for September 18 based on the absurd convictions that stipulate his business records falsely represented payments to his attorney as legitimate expenses.
These charges, which are misdemeanors, exceeded their statute of limitations. However, Manhattan District Attorney Alvin Bragg escalated their severity to felonies by claiming that these records were ‘falsified’ to further another crime, which has not been fully defined. The lawyer for Trump made a payment to Stormy Daniels to maintain silence about a sexual encounter, which Trump completely denies. Yet, providing payment to someone for their silence does not constitute a criminal act.
An attempt was made by Trump’s legal team to postpone the sentencing planned for September 18 until after the election, and in response, Bragg sent a letter to the court stating that the prosecution has no objections to this delay. Despite this, Judge Juan Merchan could decide to proceed with Trump’s sentencing, potentially imprisoning him just as Americans commence their voting. Recently, legal documents were filed by Trump’s lawyers, requesting that the case be taken out of Merchan’s courtroom and brought before federal court, arguing that the state court lacks the competence to decide on issues related to presidential immunity.
In Georgia, another case that charges Trump with ‘racketeering’ in relation to the Electoral College certification remains suspended. The hold is due to an ongoing battle by Fulton County District Attorney Fani Willis to remain on the case following the expose of her possibly disqualifying romantic association with one of her prosecutors. The Willis case will be heard before the Georgia Court of Appeals on December 5, arriving a month after the election.
Earlier in February, Judge Arthur Engoron in New York served Trump a fine of $454 million for allegedly overestimating the value of his property in loan applications to banks. Trump has appealed to a New York appeals court asking for the penalty to be dismissed as unconstitutional. Contrarily, the state of New York has requested that the appeals court validate the judgment. Oral arguments are planned in this case for September 26.
The continuous legal onslaught may have inadvertently consolidated Trump’s position. The lawfare circus could potentially rebound detrimentally on the very actors who instigated them.