April Showers Rain on Jack Smith's Lawfare Parade

A pair of discouraging Supreme Court hearings and a barrage of unsealed records in southern Florida just doused Jack Smith's plans to prosecute Trump before Election Day.

Artwork by Ruben Cueto

To hear NBC News reporter Laura Jarrett tell it, Special Counsel Jack Smith was downright jovial as he attended oral arguments at the U.S. Supreme Court last week. The nine justices were set to take up the question as to whether a former president is immune from criminal prosecution for his acts in office, a matter that originated out of Smith’s history-making indictment against Donald Trump for his alleged attempts to “overturn” the 2020 election.

“[Smith] was sitting at the counsel’s table, it was the first time I have seen him crack a smile, laughing, he was sort of jocular with this team,” Jarrett, daughter of longtime Obama whisperer Valerie Jarrett, enthusiastically swooned on MSNBC on April 25. “He was cracking jokes. Everyone sort of felt the weight of the moment but in that moment, Jack Smith was sort of, I think, trying to be as relaxed and cool as possible knowing that all eyes were on him.”

Suuure.

The special prosecutor may have put on a happy face for gullible reporters, but others admitted the proceedings signaled a fatal blow to Smith’s four-count obstruction and conspiracy indictment against Trump in Washington. Joshua Gerstein, legal affairs reporter for Politico, said “it had to be a dispiriting day” for Smith after a majority of justices express deep skepticism about the Department of Justice’s view that presidents can be exposed to criminal liability for their conduct in office.

Former federal judge and Trump antagonist Michael Luttig said he was “disturbed” by the court’s debate and unleashed a 19-post thread on X ranting about the proceedings.

Rubber room-worthy Laurence Tribe, a self-described Constitutional expert, lost (what is left of) his mind, frantically raging on X for days. Tribe accused Justice Samuel Alito of ‘living in MAGA World’ for dismissing the DOJ’s claims that built-in protections such as the grand jury system (LOL) and accountable prosecutors and attorneys general (DOUBLE LOL) would prevent a successor from vindictively prosecuting his Oval Office predecessor in the future.

But their red-hot fury at the justices masked the real source of rage: Trump’s trial in Washington very likely will not happen in 2024 as hoped.

Hopes Dashed for a Quick Decision

Trump haters, including those at the Biden White House, have depended on a layup conviction in the nearly 100-percent Democratic city of Washington, D.C. sometime before election day; U.S. District Court Judge Tanya Chutkan, an Obama appointee, rubber stamped every one of Smith’s requests, from imposing a gag order against Trump and his team to setting a fast-track trial date of March 4, 2024.

Her biggest gift, however, came in the form of an unprecedented order in December 2023 concluding for the first time in history that a former president does not enjoy immunity from criminal prosecution, which allowed Smith’s case to proceed.

But the dream of a quick guilty verdict was crushed by Trump’s audacity to exercise his due process rights and fight Chutkan’s decision, as I explained here. His appeal made it from the circuit court to the highest court in less than three months; Trump haters salivated over the possibility that SCOTUS might issue a ruling favorable to Smith in short order, permitting enough time to restart the postponed proceedings in Washington and get the case to trial by late summer or early fall.

That ain’t happening if oral arguments are any clue.

What appears to be the likeliest outcome is the court, rather than issue a clean opinion on one side or the other, will kick the question back to either Chutkan or the appellate court (at least two justices including Chief Justice John Roberts were unimpressed with the appellate panel’s hasty decision) to identify which allegations in Smith’s indictment might represent “core functions” of presidency and which allegations fall under the category of personal or private conduct.

That process will add at least a few months to a calendar already ticking down to the election--hence the deranged reaction by the Tribes and Luttigs of the world.

More Stormy Weather Ahead for Smith

Smith’s J6 indictment might be gutted before SCOTUS returns a decision on immunity. Although not a party in Fischer v USA, Smith’s side didn’t fare much better during oral arguments on April 16 related to the DOJ’s use of 1512(c)(2), obstruction of an official proceeding, in January 6 cases; the charge represents two of four counts in Smith’s J6 indictment.

The court appears poised to significantly narrow if not outright reverse how DOJ applied the law in J6 cases; a few justices noted the selective use of the statute as U.S. Solicitor General Elixabeth Prelogar repeatedly insisted various hypotheticals—and in some instances, real-life examples—of other sorts of political activity did not meet the criteria under 1512(c)(2).

One moment during oral arguments in the immunity matter further signaled a potential loss for both the DOJ—and Smith by default. Consider this exchange (condensed for clarity) between Justice Neil Gorsuch and Michael Dreeben, the lawyer defending the government.

Justice Gorsuch: Let’s say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a--piece of legislation that's going through. And it, in fact, delays the proceedings in Congress. So a president then could be prosecuted for the conduct I described after he leaves office?

Dreeben: Probably not.

Gorsuch: Why?

Dreeben: I don't think that prosecution would be valid.

He then struggled, like his colleague Prelogar had the week before, to explain why the laws won’t apply to other protesters or presidents engaged in similar behavior in the future. After all, it’s hard to win the case by admitting, “This only applies to Donald Trump and his supporters!”

That hypocrisy, presumably, is not lost on the majority of justices, or at least the ones who do not have a vagina.

A very bad sign for Smith, who wants to put Trump in jail for allegedly inciting the events of January 6 and temporarily delaying the certification of the 2020 electoral votes that day.

Stiff Headwinds off the Atlantic

One individual quickly wiping the fake smile off Jack Smith’s face is Judge Aileen Cannon. In a torrent of orders, Cannon is exposing the DOJ’s dirty prosecution of Trump for violating the Espionage Act and obstructing an investigation into his keeping of “classified documents.” (Smith also charged two Mar-a-Lago employees including Trump’s personal aide Walt Nauta with obstruction and perjury.)

Cannon just in the past week authorized the unsealing of a redacted defense motion and sealed exhibits that demonstrates the close collusion between the Biden White House, the National Archives, and the DOJ to manufacture the documents case.

Cannon also consented to the public posting of grand jury and FBI interviews; an almost completely unredacted version of the FBI affidavit to get a search warrant to raid Mar-a-Lago in August 2022; evidence of prosecutorial abuse related to threats made against Nauta’s lawyer in an attempt to get him to flip his client against Trump; and Nauta’s motion to dismiss based on selective and vindictive prosecution.

This week, Cannon will allow Trump to publicly file his motion to dismiss the case based on selective prosecution; the motion has been under seal since February pending her review of potentially sensitive material.

Further, Cannon is unlikely to schedule any hearings in the case while Trump is stuck in a Manhattan courtroom for the next six weeks. Cannon previously made clear she will not consent to any proceeding that Trump as a defendant cannot attend—and that means any hearing to contemplate a new trial date.

Rosy portrayals of Smith’s demeanor notwithstanding, it looks like few May flowers for the DOJ’s pursuit of Donald Trump.