For those of us who take the law seriously, Trump’s successful evasion of accountability for the failed coup on January 6, 2021, is outrageous. Trump has used delay as his primary strategy for avoiding accountability, as well as his partisan ties to federal judges like Aileen Cannon, whom he appointed, and the rightwing majority on the Supreme Court. Judge Cannon tossed out the documents case. The only viable case right now is Special Prosecutor Jack Smith’s indictment of Trump for launching the events of that day. That case will be heard by Judge Tanya Chutman, who was appointed by Obama. It’s a sad day when the ability to get justice depends on which judge is assigned to the case.

Jordan Rubin writes about Jack Smith’s latest filing here. Smith had to rewrite his brief to acknowledge the U.S. Supreme Court’s ruling that the President has absolute immunity for any “official acts.” Should planning to overthrow the Constitution, to subvert the election, and to send a mob to storm the Capitol be considered “official acts”?

Special counsel Jack Smith’s big immunity brief is here. The 165-page (somewhat redacted) motion lays out why, in the government’s view, the Supreme Court’s immunity ruling doesn’t stop Donald Trump from standing trial in his federal election interference case.

As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence, whom Trump pressured to subvert the 2020 presidential election.

As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence.

To understand the Pence analysis, recall that Chief Justice John Roberts’ July 1 ruling in Trump v. United States granted absolute immunity for “core” presidential acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. While the high court’s Republican-appointed majority said that it’s up to U.S. District Judge Tanya Chutkan to perform the immunity analysis in the first instance, the justices gave the Washington judge a head start in some parts, including with Pence. They said that whenever Trump and Pence discussed “their official responsibilities” — namely regarding Pence’s certification of Electoral College votes on Jan. 6, 2021 — they had engaged in “official conduct.”

That means Trump would have presumptive immunity for those alleged actions, which Smith would need to rebut. Roberts’ opinion (rather vaguely) said that can be done by showing that the prosecution wouldn’t “pose any dangers of intrusion on the authority and functions of the Executive Branch.” So that’s why Smith wrote in the motion that because that branch “has no role in the certification proceeding — and indeed, the President was purposely excluded from it by design — prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.” (The vice president is involved in certification via the office’s role as president of the Senate.)

Raskin on the Jack Smith brief: ‘American carnage is Trump’s legacy’

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The special counsel further wrote that Trump “sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.” Therefore, Smith wrote, prosecuting Trump wouldn’t “pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch.”

Smith’s team also made clear in the filing that prosecutors intend to introduce more evidence at trial related to Pence, who is not accused of any wrongdoing. For instance, they want to introduce evidence of what they call unofficial communications that Trump had with Pence in their capacity as candidates (not as president and vice president), including when Pence “tried to encourage” Trump “as a friend” when news networks began to call the 2020 race for Joe Biden, and later when Pence suggested that Trump should recognize the process was over and run again in 2024. Even if those communications were deemed “official,” Smith wrote, the immunity presumption would be rebutted there too, he argued.

To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty.

To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty. And if the former president wins next month’s presidential election, he’ll be empowered to dismiss the case entirely.

But if Trump loses, then Chutkan would have a heavy task ahead in weighing the voluminous allegations and evidence Smith presents in the monster filing and deciding whether it passes the high court’s (again, rather vague) immunity test. Ultimately, whatever the judge rules will be subject to review again by the justices before any trial can go forward. That won’t happen before the election.

The case will either be killed soon by way of a Trump victory or will linger on for months, if not years, to first determine whether the Supreme Court will even let Trump stand trial over any of these allegations.