On the docket: the return of two of Trump’s criminal cases?
Donald Trump’s lucky streak with his criminal cases might have ended this week with special prosecutor Jack Smith’s team launching a series of salvos that could revive two imperiled prosecutions.
Smith on Tuesday filed a new indictment against Trump in Washington DC federal court over the ex-president’s efforts to overturn the 2020 election. While Smith’s move does not dramatically change the case against Trump, the new indictment could protect the case following a July supreme court ruling that he and other presidents enjoyed broad immunity for official acts.
“Today, a federal grand jury in the District of Columbia returned a superseding indictment, charging the defendant with the same criminal offenses that were charged in the original indictment,” attorneys for Smith wrote in court documents.
“The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the government’s efforts to respect and implement the supreme court’s holdings and remand instructions in Trump v United States.”
Prosecutors emphasized at various points that Trump was acting outside the scope of his official duties. “The defendant had no official responsibilities related to any state’s certification of the election results,” they wrote. Just one day earlier, Smith’s office on Monday asked a federal appeals court to reinstate the classified records case, which Trump-appointed trial judge Aileen Cannon tossed on 15 July. They contended that Cannon’s dismissal of the case – rooted in her belief that Smith’s appointment was unconstitutional – was incorrect.
Remember: Cannon felt Smith’s appointment was unlawful because he was an external appointee, rather than a Senate-confirmed justice department official, writing: “Because special counsel Smith’s exercise of prosecutorial power has not been authorised by law, the court sees no way forward aside from dismissal of the superseding indictment.”
In their 81-page argument, prosecutors contend that Cannon ignored past court rulings. They insist in their appeal brief that Cannon erred in focusing on whether Smith was already a justice department official or Senate-confirmed.
The US attorney general, they said, has wide authority to pick prosecutors under federal statute. And they further argued that Cannon was incorrect in rejecting a minimum of four federal laws that authorised Smith’s appointment. One of them, section 515 of title 28 of the US code, permits a US justice department officer to helm legal proceedings when “specially directed by the attorney general under law”, they said.
They also pointed out that section 533 states that the attorney general can appoint officials to find and prosecute crimes against this country, granting the attorney general, Merrick Garland, the power to appoint Smith as special counsel for the Trump proceedings.
As the Guardian’s Hugo Lowell noted, legal wrangling on the statute issue is poised to be the focal point of appeals proceedings. Prosecutors and Trump’s lawyers already went head-to-head over the four statutes during a multi-day proceeding in Cannon’s courtroom before she threw out the case.
She felt that while section 515 permitted the attorney general to pick whomever they preferred to serve as special counsel, she thought it applied only to existing justice department officers.
Prosecutors’ pitch to the 11th circuit court of appeals kicks off what is all but guaranteed to be a lengthy legal fight. The appeals proceedings could take months, if not years. And, the 11th circuit’s decision is likely to be litigated further in the US supreme court.
Following Smith’s filing of appeals paperwork, legal commentators were split on how his pitch would play out. Norm Eisen wrote on X that Smith’s case was strong, pointing to historical examples of special counsel proceedings.
“Cannon’s decision to dismiss the case was based on an incorrect reading of the constitution concluding Smith’s appointment to be unlawful. Every single court to consider the issue (including Scotus) has taken a different position,” Eisen wrote on Monday. He called Cannon’s opinion “absurd” because attorneys general have been handling special counsel investigations without Senate approval for decades.
The supreme court in 1974, Eisen pointed out, upheld the Watergate special prosecutor’s subpoena of then president Richard Nixon’s Oval Office recordings – and cited the same statutes that gave Smith power. And, Eisen noted, the US court of appeals in DC cited this same case when it upheld the appointment of former special counsel Robert Mueller.
However the appeal shakes out, there remains the issue of Cannon – whose rulings have largely been favourable to Trump – should the case proceed. “The most interesting thing about Jack Smith’s brief to the 11th circuit is perhaps what’s not in it: a request for Judge Aileen Cannon’s removal from the case,” MSNBC’s Lisa Rubin noted on X.
Eisen and other attorneys have noted that the 11th circuit could remove Cannon even without Smith asking. But the likelihood is questionable. Elie Honig, a former federal prosecutor, said on CNN that “sometimes courts of appeals will remove a district court judge on their own”, but “it’s extraordinarily rare”.
“That is something that very rarely happens,” Honig said. “So, if they reverse her again, it’s possible, in my mind, they remove her as well.”
This has tempered some expectations about what Smith’s possible victory would mean in the long run. “The justice department has a decent chance of prevailing, but reviving the case alone won’t solve a continuing challenge Smith would still face: Cannon herself,” MSNBC’s Jordan Rubin, a former New York prosecutor, wrote.
Cronies and casualties
Rudy Giuliani, the former New York City mayor turned former Trump lawyer, will stand trial on 5 January 2026 in his Arizona election subversion case. Other Trump allies in this case, such as ex-White House chief of staff Mark Meadows and one-time Trump lawyer John Eastman, will also face trial on that date, according to CNN.
Georgia state officials were sued on Monday by Democrats, who claim that new election rules are illegal. The suit, filed in Fulton county court, involves rules green-lighted by the GOP-controlled Georgia state election board meant to grant individual county election officials the power to delay or cancel the certification of votes, Reuters notes. In a 3 August rally in Georgia, Trump called out his support for three of the Republican state election board members, calling them “pit bulls fighting for honesty, transparency and victory”.
Key dates to watch
Isaac Hayes III’s fight against Trump’s unauthorised use of his late father’s music heads to court on 3 September for an emergency hearing. Hayes’ family filed suit against Trump for his unauthorised use of the soul and funk singer’s song Hold On, I’m Comin’ at campaign rallies.
Judge Juan Merchan is expected to rule on 16 September on whether a recent US supreme court ruling that grants Trump broad immunity for official actions insulates him from prosecution in his Manhattan criminal case. If Merchan does not buy Trump’s argument that the supreme court decision gives him immunity, he is expected to be sentenced on 18 September for 34 counts of falsifying business records.
On 26 September, a New York appeals court is scheduled to hear oral arguments in Trump’s state civil fraud case. The New York attorney general, Letitia James, secured a more than $450m civil fraud judgement against him over specious real estate valuations; Trump is fighting the outcome of that case.
