Why I don’t think we have.
I don’t think so. Or let me at least put it this way: I think those who look at the calendar, look at the negative reaction in much of the country to Alvin Bragg’s patently politicized prosecution of Trump, and pronounce lawfare at an end are overconfident.
I’m addressing this because we’re about to get a slew of Supreme Court rulings, starting Thursday and Friday mornings and, I believe, continuing into next week. As I understand it, the justices have 13 more cases to decide in the term that will end in the next few days (eleven if the three cases involving social media are considered as one). These will include rulings on immunity and obstruction, which are central to Biden DOJ special counsel Jack Smith’s election-interference indictment of Trump in Washington, D.C.
Judge Tanya Chutkan has not been permitted to act on that case for months. That’s because the appellate courts (the D.C. Circuit and, now, the Supreme Court) have had jurisdiction as they’ve weighed the question whether former presidents have some quantum of immunity from criminal prosecution. As a result, Judge Chutkan has not been able to attend to the months of pretrial work — most of it having nothing to do with the immunity issue — that must be completed to get that case to trial. The case, at least in its current form (i.e., as charged in the indictment), would probably take at least six weeks to try. This, understandably, is why people surmise that a pre-Election Day trial is inconceivable.
Here’s why I think that is likely wrong.
Trump’s appellate attorney, John Sauer, ceded lots of ground at oral argument (especially in questioning by Justices Amy Coney Barrett and Elena Kagan), acknowledging that some of the central allegations in the indictment are not conceivably covered by immunity. Consequently, regardless of whether the Court concludes that former presidents have no immunity, or that they have fairly robust immunity for official actions within the scope of presidential duties, Smith is going to have a prosecutable case left.
Like many analysts, I believe the Court is going to (a) recognize some quantum of immunity, and (b) remand the case to Judge Chutkan with instructions to hold whatever hearings may be necessary to develop the factual record needed to apply the Court’s test (whatever that turns out to be) for determining whether allegedly criminal conduct is immune from prosecution.
Now, I expect that the recognition of immunity is going to be much more narrow than Trump (who seeks sweeping immunity) is hoping for. This will create a temptation for Smith. If he continued to press the issue, Judge Chutkan would probably rule in his favor, and he’d be able to keep most of his case intact. On the other hand, it would still be a live immunity dispute, meaning Trump could appeal whatever Chutkan decides, and the ensuing delay would negate any chance of having a trial before Election Day.
If I’m Smith, and my goal as the Biden DOJ prosecutor is to get Trump convicted pronto, I’d take a different tack. I would tell Chutkan that I no longer need to press the immunity argument and that I am willing to go to trial on just the alleged conduct that Sauer conceded was not immunized — along with any alleged conduct the Supreme Court may declare is not subject to an immunity claim.
At the very least, this would cover the so-called fake-electors scheme and an allegation that Trump made a false statement under oath in the litigation over his campaign’s allegations of voter fraud in Georgia. I’m guessing the Supreme Court’s opinion may reject immunity for other conduct as well — such that Chutkan would not have to conduct hearings about those allegations.
It would not be the case that Smith wants to prosecute. Naturally, he’d rather have the whole indictment, as he charged it. But by narrowing the case to just what is clearly not immunized, he could obviate the need for further appeals. If Chutkan, who seems quite hostile to Trump, were willing to indulge Smith and push hard to get the pretrial work done by, say, Labor Day, it would still be possible to have a trial prior to Election Day.
Even with a pared-down case, Smith has to like his chances with a Washington, D.C., jury and Chutkan presiding. Remember, for the Democrats’ purposes, he just needs to convict Trump of something traceable to the events of January 6. He doesn’t need to get a clean sweep.
A final note on this. As I’ve previously detailed, Smith’s team of prosecutors in Florida alerted Judge Aileen Cannon that they do not believe DOJ’s so-called 60-day rule applies to Trump. That’s the unwritten guidance under which DOJ purports to refrain from overt enforcement actions against a political candidate within two months of an election. For present purposes, my point is not to rehash why Smith has taken that position; it is to underscore that if Chutkan is willing to accommodate Smith, it would be possible to start a six- to eight-week trial in mid to late September, even if it would run through Election Day.
And how about this scenario: It would also be possible to start the trial after Election Day. After all, even if Trump wins, he would not take power until January 20, so he’d be in no position to prevent the trial; and if Smith could get Trump convicted prior to, yes, January 6 (of 2025), congressional Democrats could try to prevent Trump’s Electoral College victory from being ratified on the grounds that he is, they would claim, a formally adjudicated insurrectionist (notwithstanding that Smith has charged him with no such crime).
Strap in. It’s going to be an interesting few days . . . and months.