Vanity Fair: Cristian Farias: 'Jack Smith May Have a Secret Weapon Against Donald Trump At The Supreme Court'

Source:Vanity Fair- Donald J. Trump at a very familiar place for him, a courthouse.

"The former president has already lost many times before the justices. Whether he’s absolutely immune from prosecution is his latest Hail Mary. But there’s a twist. 

When Watergate special prosecutor Leon Jaworski went to the Supreme Court on May 24, 1974, he took the unusual step of leapfrogging the US Court of Appeals for the DC Circuit. His office had already convinced a lower court judge to order the White House to turn over “certain tapes, memoranda, papers, transcripts, or other writings” implicating President Richard Nixon in a broader criminal conspiracy. Yet, Jaworski, in a rare maneuver, petitioned the Supreme Court to act because “the constitutional issues involved in this case are exceedingly important,” and a trial needed to proceed on schedule later that year. Jaworski’s move was extraordinary enough that The New York Times printed the full text of his request in the next day’s paper.

Borrowing from the Jaworski playbook, as well as the precedent set in the resulting landmark United States v. Nixon, special counsel Jack Smith has urged today’s Supreme Court to agree to resolve a vexing question of the Trump years and to do so as quickly as possible: Can a president stand in the middle of Fifth Avenue, shoot someone dead, and be immune from criminal prosecution because the shooting occurred while he was president?

No, Smith didn’t frame his request so colloquially. However, he might have been justified in invoking Nixon’s infamous line, “Well, when the president does it, that means it is not illegal.” Instead, he asked the justices to decide a question that he called “central to our democracy”: whether Trump is “absolutely immune from federal prosecution for crimes committed while in office.” Separately, the special counsel is seeking a resolution for a secondary question: whether Trump’s prior impeachment and acquittal over his failed attempt to remain in power after the events of January 6 insulates him from criminal prosecution.

Both claims were denied in short order earlier this month by Tanya Chutkan, the federal judge who is shepherding Smith’s charges alleging that Trump conspired to obstruct Congress from certifying the results of the 2020 election. Yet Smith, like Jaworski before him, took this favorable ruling and sought Supreme Court review in hopes of affirming Chutkan’s conclusions for a very pragmatic reason: The judge already scheduled the trial to start on March 4, 2024, and a prompt resolution is in everyone’s interest—the government, the voting public, and Trump himself, who no doubt would like his many trials to go away so that he and his campaign may be freed from the burden of litigation. Looking at the compressed timeline in the Nixon tapes case, Smith pressed for a similar timetable. “Precedent supports expeditious action,” his team wrote, pointing to the nearly 50-year-old precedent.

Notice I didn’t attribute those words to Smith himself. And that’s because they sound a lot like they were written by the special counsel’s secret weapon in this fast-track appeal: Michael Dreeben, a longtime former Justice Department official, served for decades in the Office for the Solicitor General, which is charged with representing the government before the Supreme Court. He’s the “counsel of record” in this case—the person who will most certainly argue this case if and when it’s officially added to the docket. His name caught me and many others by surprise—Dreeben is a person the justices pay close attention to, with more than 100 oral arguments under his belt for both Democratic and Republican administrations.

Dreeben is also a thorn in Trump’s side in a subtler way: As a member of Robert Mueller’s Russia investigation, he has been described as “the biggest brain in criminal law in the country”—whatever that means—and someone who can think several steps ahead. Indeed, Dreeben has most certainly already foreseen the practical effect of Trump continuing to insist presidents deserve king-like absolute immunity: On Wednesday, as a result of the former president’s own appeal of her rulings, Chutkan paused all upcoming deadlines in the congressional obstruction case, which means a March trial may not happen at all.

Yet she left the door open. “If jurisdiction is returned to this court, it will—consistent with its duty to ensure both a speedy trial and fairness for all parties—consider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024,” Chutkan wrote. 

As it happens, this flurry of activity in the courts, and that to come, isn’t the only development Smith and his office will have to play three-dimensional chess with. On the same day that Chutkan hit the pause button in the election subversion case, the Supreme Court agreed to hear a long-running dispute involving a trio of January 6 defendants who claim that the Justice Department overreached in prosecuting them for obstructing Congress. The reason these slow-moving cases matter, as Roger Parloff has written extensively over at Lawfare, is their overlap with two of Trump’s charges in DC—and because 300-plus people who were present at the Capitol siege have been charged under the same law. 

Since the early days of the Justice Department’s probe of the insurrection, federal prosecutors have turned to a subsection of the Sarbanes-Oxley Act of 2002—enacted in the wake of the Enron scandal—that makes it a crime to impede an official government proceeding. Hundreds have been charged under it. But to the defendants, that law is merely a document-tampering statute that doesn’t apply to obstructing the joint session of Congress on January 6. Yet a coterie of trial judges across the political spectrum have rejected that argument; the only exception has been Carl Nichols, a Trump appointee who last year agreed that a charge of obstruction was only appropriate if it concerned “a record, a document, or other object” associated with the Capitol breach.

I won’t attempt to parse the language of 18 U.S.C. 1512(c)(2), the law being challenged, which criminalizes anyone who “corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” But suffice it to say, a divided DC Circuit concluded that the language was unambiguous and covered the conduct of these three January 6 defendants. “Under the most natural reading of the statute, § 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding,” above and beyond simply document-tampering, wrote US Circuit Judge Florence Pan, a Joe Biden appointee.

If that weren’t head-spinning enough, Jack Smith isn’t the one overseeing these cases and the hundreds of other January 6 prosecutions that are similar to it—the Justice Department and the US Attorney’s Office in Washington are. As a result, in principle, he’s not directly involved with how Solicitor General Elizabeth Prelogar defends these prosecutions before the justices. As she put it in a brief urging the court to decline hearing these appeals: Even accepting that the law under attack is an evidence-tampering statute doesn’t help the defendants. “Preventing the Members of Congress from validating the state certificates thus constitutes evidence-focused obstruction,” Prelogar wrote.

Court observers are abuzz, if not outright skeptical, that a majority on the Supreme Court has any appetite for undermining hundreds of federal prosecutions, let alone ones against Trump. If there’s any comfort in this tangled web, it is that the justices have had very little tolerance for anything related to Trump’s disruption of the peaceful transfer of power after the 2020 election. From rejecting his and Texas’s long-shot bid to overturn the election results in the states Biden won to siding with the January 6 committee to declining his intervention in the Mar-a-Lago classified documents dispute, their patience appears to be wearing thin. If that pattern holds, there’s a reasonable chance that a majority won’t let him get away with subverting what remains of our democracy." 

From Vanity Fair

Imagine Donald Trump is innocent of the all the Federal and state charges that are against him, (and why you are at that, also imagine Planet Mars attacking Planet Venus in real life and it's being shown on Planet Earth via pay-per-view) it would be in Donald J. Trump's best interest to move to a speedy trial and get this mess behind him. Innocent people, who can defend their innocence, tend to want to move quickly, especially if for whatever reasons the prosecution doesn't believe that they're innocent. 

But what the Trump team is doing here is trying to not get their client acquitted, but prevent him from even having to stand trial under some bogus (to be kind) argument that President's are literally above the law, or at least Donald Trump is. And therefor can't be held accountable for anything that they do, at least while they're President. And that they're also above the law that they can't be prosecuted for anything that they did while they were President, even after they left The White House. 

I'm willing to bet (perhaps not much) that Donald Trump's lawyers are smart enough to know that they're going to lose at the Supreme Court, even if Justice Clarence Thomas and perhaps Justice Samuel Alito want to rule in their favor. Just because of how awful a precedent this would create and that it would give future President's, even a left-wing President, who becomes President of the United States, similar to how Donald Trump became President and now that far-left President has the same presidential immunity, that Donald Trump did, thanks to a Republican leaning Supreme Court. 

But what Donald Trump's lawyers are doing here, might just to either set up an appeal after they lose in Washington and their client is found guilty, or be able to file another motion for dismissal arguing that the U.S. Department of Justice is not committing election interference by prosecuting their client, who just happens to be the Republican nominee for President, so close the the 2024 presidential election. Forgetting the obvious fact that they've gone out-of-their-way to delay this trial for as long as possible, when it could've been over by the late spring of 2024, instead of the late summer, had they not attempted to delay the trial for as long as possible and they simply just got their client acquitted based on the evidence that they brought to the trial and their cross-examinations of DOJ's witnesses. 

Donald Trump, just like every other American citizen, just like every former President, just like the current President, Joe Biden is obviously not above the law. Vanity Fair has the Jaworski V Nixon case from 1974, that's on this post. But there's another one as well which is Fitzgerald V Nixon from 1982: 

"Nixon v. Fitzgerald, 457 U.S. 731 (1982), was a US Supreme Court case that dealt with immunity from prosecution of government officials performing discretionary functions when their actions did not violate clearly-established law. 

Arthur Ernest Fitzgerald filed a lawsuit against government officials that he had lost his position as a contractor for the US Air Force because of testimony made before Congress in 1968.[2] Among the people listed in the lawsuit was ex-President Richard Nixon, who argued that a president cannot be sued for actions taken while he is in office.[3]

The trial court and the appellate court rejected Nixon's claim of immunity. The case was then appealed to the Supreme Court. 

In a 5–4 decision, the Court ruled that the President is entitled to absolute immunity from legal liability for civil damages based on his official acts. The Court, however, emphasized that the President is not immune from criminal charges stemming from his official or unofficial acts while he is in office.[5]

The Court noted that a grant of absolute immunity to the President would not leave him with unfettered power. It stated that there were formal and informal checks on presidential action that did not apply with equal force to other executive officials.[6]

The Court observed that the President was subjected to constant scrutiny by the press and noted that vigilant oversight by Congress would also serve to deter presidential abuses of office and to make the threat of impeachment credible. It determined that other incentives to avoid presidential misconduct existed, including the desire to earn re-election, the need to maintain prestige as an element of presidential influence, and the traditional concern for his historical stature.[7]

The decision was clarified by Clinton v. Jones, in which the Court held that a President is subject to civil suits for actions committed before he assumes the presidency." 

From Wikipedia

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