A Lifeline for Jack Smith in the J6 Case Against Donald Trump

Judge Tanya Chutkan is wasting no time restarting the proceedings in her courtroom after two key SCOTUS decisions potentially gutted Smith's indictment. How will she help DOJ salvage the case?

Well, that didn’t last long.

Following humiliating losses at the Supreme Court and the shocking dismissal of the so-called classified documents case in Florida, Special Counsel Jack Smith appeared down for the count in his floundering attempt to ever get Donald Trump behind bars, let alone before Election Day. 

In Trump v US, SCOTUS determined parts of Smith’s case against Trump related to the events of January 6 safely fell under immunized presidential conduct, largely gutting his case. And in Fischer v US, the court concluded the Department of Justice including the special counsel wrongly applied 1512(c)(2), obstruction of an official proceeding, in J6 cases; the felony represents two of the four counts in Smith’s J6 indictment.

To make matters worse, two former attorneys general, one sitting Supreme Court Justice, and the district court judge presiding over the documents case all recently declared that Smith’s appointment violated the Appointments Clause of the Constitution, which resulted in Judge Aileen Cannon dropping the case in a 93-page order published on July 15. 

The DOJ quickly appealed Cannon’s decision—the matter has been docketed at the 11th Circuit and the government’s brief is due on August 27—but it is unlikely the appeal will be heard before the end of the year. The case most legal experts considered a slam-dunk win for the DOJ is DOA for the foreseeable future.

But Smith has just been handed a lifeline by Judge Tanya S. Chutkan, the Obama appointee handling the J6 case in Washington.

An Unrepentant Judge Chutkan Seizes the Reins Again

Since being assigned the case in August 2023, Chutkan has played the part of an extra prosecutor on Smith’s team, refusing to step aside despite a long record of bias in J6 cases—during two separate J6 sentencing hearings last month, Chutkan repeated the unsubstantiated claim that four police officer committed suicide over that day and called January 6 “horrifying”—and imposing a broad gag order on the former president.

She repeatedly stated that “politics” plays no role in her decision-making as a way to signal she won’t consider the election calendar in setting hearings or a trial date.

But as Chutkan’s historic December 2023 order denying Trump’s claims of presidential immunity from criminal prosecution swiftly proceeded through both the D.C. appellate court and highest court, the case remained on ice.

On July 1, the Supreme Court vacated Chutkan’s decision that had been upheld by the appellate court and kicked the immunity question back to Chutkan. SCOTUS essentially identified three buckets of immunity—absolute for conduct clearly under the Constitutional purview of the presidency, none for personal conduct, and some for “unofficial” acts—that Chutkan must now identify within the scope of Smith’s 45-page indictment.

Chief Justice John Roberts, writing for the 6-3 majority, also spared no criticism of how Chutkan and the D.C. appellate court handled the historic case. “Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis,” Roberts wrote. 

Roberts also knocked Chutkan for failing to hold a single hearing on the unprecedented question, something in stark contrast to how Cannon considered defense motions in her courtroom. “[Chutkan and the appellate judges] did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.” He also noted the court decided the immunity question “less than five months after we granted the Government’s request to construe Trump’s emergency application.”

It is unlikely, however, Chutkan will demonstrate any level of contrition as she again takes the reins of a case she tried to get to trial last March, a mere seven months after Smith handed down the indictment. 

Chutkan issued an unusual Saturday morning order scheduling a court hearing for August 16 and requesting a status report from both sides next week which could include proposed trial dates.

Let the Games Begin

For his part, Smith is expected to file a superseding indictment to carve out accusations related to Trump’s discussions with his DOJ about the 2020 election, activity that SCOTUS concluded the former president was “absolutely immune from prosecution.” The protected conduct includes Trump’s attempts to pressure top DOJ officials to investigate voting fraud and consider replacing his acting attorney general at the time if the DOJ did not proceed accordingly. (Smith may also have to drop former DOJ official Jeffrey Clark, an unnamed co-conspirator, from the case based on SCOTUS’ opinion.)

But how will Smith handle the elements in his indictment related to Trump’s discussions with former Vice President Mike Pence? The Supreme Court strongly suggested those interactions also fall under immunized conduct but left the door open for Smith to make his argument that they were not. “It is ultimately the Government’s burden to rebut the presumption of immunity,” Roberts wrote. “Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.”

Smith might have a better chance convincing Chutkan and ultimately the higher courts that Trump’s interactions with state and local officials about the 2020 election represent conduct outside even the outer perimeter of presidential authority. The court suggested Chutkan should now perform the due diligence on that issue she ignored the first time around:

“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent.”

Some speculate Chutkan will hold a “mini-trial” of sorts to finally give the immunity question the appropriate legal scrutiny it requires. This could involve testimony by potential trial witnesses including Pence, former attorney general William Barr, and the state/local officials cited in the case. Chutkan could very well set the “mini-trial” hearing in September or October as Americans begin the process of voting for president.

DOJ Up to Old Tricks on Election Interference

Team Trump presumably is preparing separate motions to dismiss the case based on the Fischer decision and Judge Cannon’s order on the unconstitutionality of Smith’s appointment. (Her order is not binding in another circuit and the DC appellate court already upheld the constitutionality of a special counsel appointment in a case filed against former Special Counsel Robert Mueller.) Another motion to dismiss filed last year for selective and vindictive prosecution remains pending.

Trump’s lawyers also are expected to file a request to lift the existing gag order in the case. Chutkan put all the proceedings on hold after Trump appealed her immunity decision but kept in place her gag order banning the former president from making “extrajudicial statements” about individuals tied to the case. “Undisputed testimony cited by the government demonstrates that when [Trump] has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” Chutkan claimed in her October 2023 order.

A panel of three Democratic appellate judges pared back her order a few months later but still prohibited Trump from making public statements about “known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding,” court staff, and family members of court or special counsel’s office.

Perhaps more problematic—and political—is the court’s ban preventing Trump from making public statements about the lawyers in the case aside from Jack Smith. 

The special counsel’s office is stacked with partisans with a record of animus against the former president. For example, an internal DOJ investigation recently uncovered malfeasance by J.P. Cooney, one of the lead prosecutors in the J6 case, related to the conviction of Trump associate Roger Stone. The Federalist’s Mollie Hemingway said the DOJ inspector general’s investigation demonstrated that Cooney “cultivated a politically toxic environment, disseminated baseless conspiracy theories about Trump and his political appointees, and engaged in unprofessional conduct as he oversaw the team making sentencing recommendations.” 

Hemingway also detailed numerous instances of Cooney’s brazen partisanship.

Further, the Florida documents case revealed the dirty, corrupt nature of the prosecutors on Smith’s team, particularly Jay Bratt, who is under investigation for threatening one of the defense attorneys in the case.

Banning Trump from making critical statements about DOJ lawyers doesn’t only violate his First Amendment rights but represents election interference—something the DOJ is very good at.

And something it appears Judge Chutkan is prepared to do as well.