Special counsel John L. “Jack” Smith is set to clash with attorneys for Donald Trump in the next two weeks over the survival of criminal prosecutions in Washington and Florida, following several court rulings in the former president’s favor.
Court rulings have ensured Trump will not face trial before Election Day, but courtroom drama could play out at key moments leading up to the election as the cases move through the court system.
Smith and Trump both face a Friday deadline to lay out their plans for the future of the prosecution in Washington over charges tied to Trump’s attempt to overturn the results of the 2020 election.
That, along with a Sept. 6 court hearing, will restart the case that was put on hold while the Supreme Court decided whether Trump as a former president was immune from criminal prosecution.
And on Monday, Smith officially urged the U.S. Court of Appeals for the 11th Circuit to revive the case alleging that Trump illegally kept classified documents after the end of his presidency, as well as affirm the constitutionality of Smith’s own office.
Last month, U.S. District Judge Aileen Cannon, a Trump appointee, threw out the indictment alleging Trump improperly retained some of the country’s most sensitive secrets, finding Smith’s appointment as special counsel unconstitutional.
Attorney General Merrick B. Garland appointed Smith in 2022 after Trump announced his reelection campaign, and Smith has pursued the two federal criminal cases against the former president.
Cannon ruled that Smith’s appointment violates the Constitution and federal law, echoing a concurring opinion from Supreme Court Justice Clarence Thomas in a different Trump-related case.
Cannon wrote there is no law that “gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.”
Smith’s filing argued that for more than two centuries the Justice Department has used special counsels like him to handle sensitive prosecutions — and Congress even created dedicated funding for his office.
“From before the creation of the Department of Justice until the modern day, Attorneys General have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Department of Justice itself), Watergate, and beyond,” Smith argued.
Trump’s response is due next month, and oral arguments could possibly happen before the election.
William Banks, a law professor at Syracuse University College of Law, said Cannon “stuck her chin out” with that ruling. The Florida case was regarded as the strongest against Trump, Banks said, as it included damning evidence that Trump kept some of the nation’s most closely guarded secrets in unsecured areas of his private club, Mar-a-Lago.
Banks said Cannon’s ruling cut against decades of court decisions upholding the constitutionality of special counsels as well as the prior independent counsel statute.
“Prosecutors, attorneys general have had discretion to appoint officials for all sorts of circumstances since the beginning of the republic,” Banks said.
Banks noted that the boldness of Cannon’s ruling may not matter in the end.
“Now Trump looks like he is positioned to become the next president, and he’d have the cases dismissed in any case,” Banks said.
Washington case
Smith asked for more time to process the Supreme Court ruling that found Trump was immune to most federal charges, and Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia set Friday’s filing deadline.
Barbara McQuade, a former federal prosecutor and law professor at University of Michigan, said the next two weeks in the Washington case will set the stage for how the historic prosecution of a former president will play out.
Chutkan will consider the future of the case with the justices already looking over her shoulder. The majority opinion by Chief Justice John G. Roberts Jr. already proclaimed parts of the original case to be off limits, including allegations about Trump’s effort to enlist Justice Department officials to spread false information about the 2020 election.
McQuade said the coming filing and court hearing could determine whether Smith may try and trim down the case to what can survive following the Supreme Court’s immunity decision.
And McQuade said there are open questions about what portion of the case could survive — for instance whether Trump could still face prosecution for his alleged encouragement of Vice President Mike Pence to reject electors from states he lost, or that he communicated with co-conspirators and with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin regarding those states’ certification of electors.
McQuade said that although the Justice Department has a policy against pursuing major investigative steps during an election season, it’s now on Chutkan to dictate the court schedule.
“So it is likely that this will be in the public square during election season. But that’s not the fault of the prosecution. They filed this indictment, what, two years ago now,” McQuade said.
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