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.

I haven’t read the brief yet (but will). However, I’ll be looking and listening for reference to Trump’s violation of the Oath of Office, e.g., to protect the Constitution of the United States. In my view, that’s the central piece of it–because it connects the rule of law (on paper) to a living individual’s promise–in a context where the leader is not a remote god, a stupid king, or just a bully tyrant abusing his power.
In read parts, the brief apparently refers to the many efforts by Pence and staff, who already knew Trump was losing, to “appease” Trump in a friendly way, like pampering a baby or a king who might kill the messenger in a fit of anger. One commentator said, “Come on guys, he’s a grown man.”
That commentator was also right about Trump being a “stain” on our country and a warning about future democratic states, should there be any. CBK
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Trump said yesterday that he will revoke the legal status of the Haitian immigrants in Ohio and send them back to Haiti. Not sure if their employers want to lose their workers.
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Diane: I think he’s already nuts and has been for a very long time; but is now slipping even further into delusional thinking, if that’s even possible.
One can only hope that he’s shedding voters every time he opens his mouth and that those who have any power in the situation at all will not hesitate to use it . . . like voters, of course, but also those others who are in and out of government.
I hope the fat lady is ready because she’s going to have to sing loud and clear when the time comes. And unfortunately, again, if Kamala’s resume were a man’s, it would a slam dunk already. CBK
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Diane: I think they have poked the giant enough so that it’s finally waking up, I hope in time; and that the rich folks who are similarly careless will keep it in their pants . . . er, . . . their wallets. CBK
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Makes sense to me, although I don’t see how this discussion is presumptively “official conduct” that even requires rebuttal — it’s Pence’s official responsibilities they’re discussing, not Trump’s. Regardless, I think everyone knows how Alito and Thomas will come out on that. Let’s hope at least one of Roberts/Gorsuch/ACB has more spine and sense.
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Flerp: And then there’s Biden who, in this window between his still being president and the swearing in, he has the same power that is apparently afforded to Trump by SCOTUS. And it will still be Biden’s job to honor the Constitution. CBK
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Trump VIOLATED his Oath of Office….period.
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“It’s a sad day when the ability to get justice depends on which judge is assigned to the case.”
That justice, known as bought and paid for legal judgements, are far more available to those who have lots of $$$ to pay for them. We peeons don’t have access to that “justice.”
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Duane: . . . only in force, and Trump even tried to take that away, so we know where this is going.
Also, Vance called on women (and everyone) else to trust us (the movement he is involved in?) . . . at least twice in the debate–a good example of Yaley double-speak and nice-sounding code for “we only want your well-being, just let us take over.”)
But, from their past, we need not trust–we know what’s in store. To trust NOW when we know already what they’re up to, would only prove that what they think of us is true: We are all dumbbell male-worshipers (and dried up cat ladies) who invite abuse from wherever and whomever we can get it, because we have no self-respect.
Been there, done that, what’s next. CBK (No Donna Reed or Phyllis Schaffler here). CBK
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it is remarkable that one leg of our constitutional table will be in charge of either giving itself more power or less power with any ruling. The Supreme Court can give itself more power by giving Congress less power. Since the executive appoints the court, there must be a significant unity in Congress to provide a check to the power of the other two. The modern deadlock in Congress prevents this.
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Traitor Trump didn’t organize and plot to overthrow the US government on January 6, 2021, by himself. He had billionaire supporters [and some are still supporting him], Christian Nationalists and/or the fascist loving, Trump worshiping MAGA cult. The traitor also has Putin and a few other ruthless dictators on his side.
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A second term for Trump with Project 2025 in his hands would be a slower moving coup, but a coup nonetheless.
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For those unconditionally supporting Trump, ‘just because’; they really do not know what potential fires they may be starting.
If he does get back into the Whitehouse, there are going to be folk who having lost confidence in The System to keep these forces which birthed Trump in check, will resort to other means, and it will not end well for all sides.
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All of the Russia Republicans who participated in and facilitated the coup are sitting in awkward silence as justice finally comes knocking for the Putin puppet. And the fact that their seditious coup is ongoing (in Georgia especially) is why billionaire-groupie Vance wants you just to move on – “nothing to see here!”
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