Susan Shelley: Jack Smith’s case against Trump is an overreach

On July 1, at the very end of the U.S. Supreme Court’s term, the justices cut the heart out of special prosecutor Jack Smith’s two cases against former President Donald Trump.

But like an extra on “The Walking Dead,” Smith is back. He has filed a superseding indictment against Trump that replaces the previous indictment in the Washington, D.C., case, just in time for the start of early voting in the November election. Smith presented his case to a new grand jury and made a few alterations to the indictment to fit with the Supreme Court’s ruling on presidential immunity in Trump v. United States.

The charges, however, are almost exactly the same as before. Trump is accused of being “determined to remain in power” during the two months after the election on Nov. 3, 2020, and of spreading “lies that there had been outcome-determinative fraud” in the election. “These claims were false, and the Defendant knew they were false,” the indictment asserts.

But proving somebody’s state of mind isn’t quite that simple. Trump’s lawyers will have the opportunity to present evidence of irregularities and illegalities in voting that were reported to Trump at the time.

In contrast, Smith’s team will not be able to tell a jury that officials in the Trump administration’s Department of Justice told the now-former president there was no fraud. The Supreme Court said the president’s conversations with his appointees, including conversations about hiring and firing his appointees, are within the core presidential powers that are protected by absolute immunity.

The former president’s state of mind is key to the immunity question. If Trump believed there was fraud in the election, he was arguably acting in his official capacity as president, taking care that the laws are faithfully executed, by trying to delay the certification of the election to give states time to investigate.

On the other hand, if Trump “knew” there was no “outcome-determinative fraud,” then arguably he was acting as a candidate and his actions were unofficial, therefore not protected by immunity.

To figure this out, the court may have to listen to every bit of evidence of alleged election fraud or illegal voting in multiple states. And that’s before the court even gets to the charges against Trump: “conspiracy to defraud the United States,” “conspiracy against rights,” “obstruction of and attempt to obstruct an official proceeding” and “conspiracy to obstruct an official proceeding.”

The two charges related to obstructing an official proceeding are highly questionable after the Supreme Court’s June decision in Fischer v. United States, in which the justices held that to prove a violation of the law at issue, 18 U.S.C. Section 1512(c)(2), the government had to prove that the defendant somehow impaired the integrity or availability of records, documents or other things used in an official proceeding.

It’s not clear exactly how Trump supposedly violated this law. What records or documents were impaired? The Electoral College process allows for objections and for the submission of alternate slates of electors in case those objections lead to a change to the certified vote of a state. One purpose of the Electoral College is to sort out a disputed presidential election.

Trump’s legal team can challenge Jack Smith’s use of evidence that they believe is protected by presidential immunity, and then the losing side can appeal all the way to the Supreme Court. Nothing is going to be resolved in the two months before the election.

Smith’s other case against Trump, the trial in Florida over presidential records stored at Mar-a-Lago, was dismissed on the grounds that the special counsel was illegally appointed and the office is unconstitutional. Smith has recently appealed that ruling, but the argument that the attorney general’s appointment of a special counsel is unconstitutional was made in detail by Supreme Court Justice Clarence Thomas in a concurring opinion in the Trump immunity case. So Smith’s appeal may not get far.

What’s going on with the rest of the lawfare circus?

In New York, Trump is scheduled to be sentenced on Sept. 18 on the ludicrous convictions for statements in his own business records that payments to his lawyer were legal expenses. These charges are misdemeanors and were past the statute of limitations, but Manhattan District Attorney Alvin Bragg jacked them up to felonies by alleging that the records were “falsified” in the furtherance of some other crime, which was never fully identified. Trump’s lawyer paid Stormy Daniels to keep quiet about a sexual encounter that Trump denied ever happened, but paying someone to keep quiet is not a crime.

Trump’s legal team asked to have the Sept. 18 sentencing delayed until after the election, and Bragg sent the court a letter saying the prosecution did not object to the delay. However, Judge Juan Merchan may choose to sentence Trump anyway, possibly putting him in prison just as Americans begin voting.

Trump’s lawyers just filed legal papers asking to have the case removed from Merchan’s courtroom and taken up in federal court, arguing that the state court is not competent to decide issues related to presidential immunity.

Meanwhile in Georgia, another case charging Trump with “racketeering” related to Electoral College certification is on hold while Fulton County District Attorney Fani Willis fights to remain on the case after the revelation of her potentially disqualifying romantic relationship with one of her prosecutors. The Georgia Court of Appeals will hear oral arguments in the Willis case on Dec. 5, a month after the election.

You may remember that in February, Trump was fined $454 million by New York Judge Arthur Engoron for supposedly overvaluing his property in loan applications to banks. Trump has asked a New York appeals court to throw out the penalty as unconstitutional, but the state of New York asked the appeals court to uphold the judgment. Oral arguments are scheduled for Sept. 26.

The unending legal attacks may actually have made Trump stronger. And the lawfare circus may be backfiring on the clowns.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley