The Special Counsel election interference case against PDJT has been suspended. President Trump’s attorneys argued to the DC Circuit appellate court that PDJT holds inherent constitutional immunity. In essence, because President Trump was acquitted by the Senate of claims he incited or instigated the January 6, 2021, events, lawyers are arguing that under the Constitution only impeached and removed presidents can be criminally prosecuted.
In essence the attorneys are arguing that, notwithstanding his dubious appointment as Special Counsel, Jack Smith has no standing to bring the case unless the Senate had removed PDJT from office.
There is a critical core issue at play here. If PDJT does not have immunity for the decisions he made as President, then all Presidents, past, present and future, can be criminally prosecuted for any and all decisions made while in office.
There is no indication of when the three-judge panel will rule on this issue. Following such a ruling, there could be a review by the entire DC circuit court. Depending on the outcome, there could even be an appeal to the Supreme Court. All of this takes time. The outcome directly impacts the ability of Lawfare’s Jack Smith to move forward with the initial ridiculous case.
As a result, Judge Tanya Chutkan, the Obama appointee who is overseeing Jack Smith’s January 6 case against Trump in DC, formally postponed the trial on Friday. Judge Chutkan also told the prospective jurors who were asked to fill out a pre-trial questionnaire not to appear in court next week.
This appeal within the DC appellate system is also causing delays in other lawfare trials. In Florida, the Trump appointee who is overseeing Jack Smith’s classified documents case in Florida, will hold a March 1 hearing to get a status update on the special counsel’s DC case.
Judge Cannon suggested the May 20 trial date for the classified documents case will be postponed if the special counsel couldn’t resolve the Trump immunity argument in a timely manner.
Are there other issues at play here? Ed Meese and others have identified that Jack Smith is not constitutionally empowered to pursue this case because he was not confirmed by the Senate. They have filed a briefing as Amici Curiae (friend of the court, not connected to either party), [pdf HERE] challenging the legitimacy of the Biden appointed special counsel. According to them, Smith is a “minor” attorney, not a legitimate US Attorney, for the express purpose of prosecuting allegations of crimes about OFFICERS, namely THE PRESIDENT.
Is this withdrawal of the case from the court docket part of a strategy to allow the DOJ to fix this fundamental mistake? In removing the case from the docket, effectively this strikes the case from the domain of the court. It allows DOJ to regroup to avoid the court review of Smith’s appointment. Then the DOJ transfers the case to a proper legitimate US attorney with appropriate Senate-confirmed SENIOR status.
What are the legal implications of doing that? Is this the game underway now? Can all the evidence and testimony that was obtained via various routes including plea deals be transferred to a new attorney? Remember, the essence of the Meese letter is that Smith was an “unlawful” Special Counsel.
I think it is time to buy some popcorn.