Legal experts examine special counsel’s path forward in Trump election interference case

Late Friday night, August 30 — as Labor Day Weekend 2024 was getting underway — special counsel Jack Smith and former President Donald Trump filed a joint status report in which they expressed conflicting views on how Smith's election interference case against Trump should be handled.

Trump claims that the U.S. Supreme Court's 6-3 immunity ruling in Trump v. the United States invalidates the case altogether. Smith disagrees, and his re-indictment keeps four of the federal criminal charges against Trump in place.

Four attorneys — Matthew A. Seligman, E. Danya Perry, Joshua Kolb and CNN legal analyst Norm L. Eisen — examine the status report in an article published by Just Security on Labor Day.

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"In the status report," the lawyers explain, "both sides recognized that there will be significant motion practice related to presidential immunity, but sharply differed over the nature and schedule of the proceedings. The special counsel argued that (Judge Tanya) Chutkan must as a threshold matter conduct a 'fact- and context-specific analysis of whether the superseding indictment contains immunized conduct.' Smith argued that this is not only consistent with the Supreme Court's direction on remand in this case, but also, with the principle that questions related to immunity should be resolved 'at the earliest possible stage in litigation' — quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)."

Eisen, Seligman, Perry, and Kolb add, "Therefore, Smith proposed filing an opening brief explaining why the government believes the immunity established in Trump v. United States does not apply to any of the allegations contained in the superseding indictment or in the evidence they intend to introduce at trial, which Trump would have the opportunity to oppose."

In Trump v. the United States, the High Court's GOP-appointed supermajority ruled that U.S. presidents enjoyed broad immunity from criminal prosecution for "official" acts and "core" functions but not for "unofficial" acts.

"In retaining these allegations," the four attorneys note, "the special counsel added subtle yet important emphasis on the private character of Trump's actions by noting that the scheme was carried out with private collaborators, such as Republican National Committee Chairwoman Ronna McDaniel…. The special counsel added important context to emphasize the private character of Trump’s public statements, in which he made false claims of voter fraud and election improprieties…. Trump, in the joint status report, argues that his 'Tweets and public statements' about the 2020 election are immune, signaling the position he will continue to take in future proceedings."

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The attorneys recommend that Judge Chutkan, the Barack Obama appointee assigned to Smith's election interference case, "set a schedule for immediate briefing."

Eisen, Seligman, Perry, and Kolb write, "The special counsel says, in the status report, that it is ready to file 'promptly at any time the Court deems appropriate'…. The judge should take Smith up on it, instructing him to file his brief by Monday, September 9, with Trump's opposition due two weeks later on September 23, and Smith’s reply due one week after that on September 30.

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Read the full Just Security article at this link.