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For anyone who cares about how Jack Smith is actually navigating the Supreme Court rulings
Brennan Center @BrennanCenter 16hFormer U.S. attorney Joyce Vance breaks down the challenges and choices Special Counsel Jack Smith now faces in prosecuting Trump.
What’s Ahead for Jack Smith
by, Joyce Vance
___Different prosecutors may land on different strategies in the same case. But when it comes to the fundamentals, all prosecutors follow the same rules: the Federal Principles of Prosecution. Smith will too.
The principles are guidelines federal prosecutors use to decide whether to bring an indictment. They are part of what is now called the Justice Manual, previously the United States Attorneys’ Manual. Before indicting, a prosecutor must believe she can “obtain” and “sustain” a conviction. In other words, she must believe the evidence is sufficient to obtain a plea or guilty verdict in the trial court and have that verdict sustained on appeal. There are other considerations as well, but this is the threshold requirement.
Here, Trump has already been indicted, but following the Supreme Court’s decision on immunity, Smith’s team may choose to — or be ordered by the court to — alter or delete some of the four crimes Trump is charged with committing, the allegations they make in the indictment to support those crimes, and the evidence they intend to offer at trial to prove them. To proceed, Smith must be satisfied that he will still have sufficient evidence to convict on any charges that survive the Supreme Court’s decision and that he is on sound ground legally so any conviction he obtains can be sustained on appeal. When prosecutors have evidence suppressed or lose legal arguments, they act accordingly and voluntarily dismiss some counts in an indictment or even the entire case where appropriate. In this sense, Smith’s next steps as he recalibrates after the Supreme Court’s decision will be guided by the Principles of Prosecution. And the election interference case will be like any other.
Trump will attempt an interlocutory appeal — that is, an appeal before the trial — of Chutkan’s decisions on this matter, again. As the Supreme Court explained, the entire point of the protection immunity offers is that it prevents the holder of immunity from being tried at all. The benefits of that immunity are lost if a court wrongfully permits a case to go to trial, so a former president asserting the immunity is entitled to take an appeal in advance of trial to resolve the issue. Once Chutkan rules, expect that this case will be off to the Supreme Court again.
...it makes sense for Smith to take the time to build a strong record to support each charge and allegation he believes is made on the basis of unofficial acts or presumptively official acts where he can overcome the presumption of immunity. Insistence on going quickly doesn’t make sense; the case is not going to trial until the appellate courts get at least one more crack at it. Here, getting it right is more important than going fast. Getting it wrong would mean losing any conviction obtained at trial on appeal and it’s not happening before the election in any event.
read more: https://www.brennancenter.org/our-work/analysis-opinion/whats-ahead-jack-smith
by, Joyce Vance
___Different prosecutors may land on different strategies in the same case. But when it comes to the fundamentals, all prosecutors follow the same rules: the Federal Principles of Prosecution. Smith will too.
The principles are guidelines federal prosecutors use to decide whether to bring an indictment. They are part of what is now called the Justice Manual, previously the United States Attorneys’ Manual. Before indicting, a prosecutor must believe she can “obtain” and “sustain” a conviction. In other words, she must believe the evidence is sufficient to obtain a plea or guilty verdict in the trial court and have that verdict sustained on appeal. There are other considerations as well, but this is the threshold requirement.
Here, Trump has already been indicted, but following the Supreme Court’s decision on immunity, Smith’s team may choose to — or be ordered by the court to — alter or delete some of the four crimes Trump is charged with committing, the allegations they make in the indictment to support those crimes, and the evidence they intend to offer at trial to prove them. To proceed, Smith must be satisfied that he will still have sufficient evidence to convict on any charges that survive the Supreme Court’s decision and that he is on sound ground legally so any conviction he obtains can be sustained on appeal. When prosecutors have evidence suppressed or lose legal arguments, they act accordingly and voluntarily dismiss some counts in an indictment or even the entire case where appropriate. In this sense, Smith’s next steps as he recalibrates after the Supreme Court’s decision will be guided by the Principles of Prosecution. And the election interference case will be like any other.
Trump will attempt an interlocutory appeal — that is, an appeal before the trial — of Chutkan’s decisions on this matter, again. As the Supreme Court explained, the entire point of the protection immunity offers is that it prevents the holder of immunity from being tried at all. The benefits of that immunity are lost if a court wrongfully permits a case to go to trial, so a former president asserting the immunity is entitled to take an appeal in advance of trial to resolve the issue. Once Chutkan rules, expect that this case will be off to the Supreme Court again.
...it makes sense for Smith to take the time to build a strong record to support each charge and allegation he believes is made on the basis of unofficial acts or presumptively official acts where he can overcome the presumption of immunity. Insistence on going quickly doesn’t make sense; the case is not going to trial until the appellate courts get at least one more crack at it. Here, getting it right is more important than going fast. Getting it wrong would mean losing any conviction obtained at trial on appeal and it’s not happening before the election in any event.
read more: https://www.brennancenter.org/our-work/analysis-opinion/whats-ahead-jack-smith
9 replies
= new reply since forum marked as read
= new reply since forum marked as read
...to evidence Garland's team had already seized as early as 2021.
And you left out at least five appeals court reviews of the attorney client privileges and other claims of privilege of at least 5 Trump top aides and attorneys which dragged on into 2023, overlapping the SC, but still Garland's lawyers successfully fighting back those appeals of phones and other communications with Trump.
And ultimately allowing the SC to force those Trump confidents to reveal what they know, and ultimately include them as KEY witnesses in the indictments.
You act as if the time Garland spent collecting the bulk of the evidence Smith presented to the grand juries didn't happen, or that the court challenges didn't occur. That's what's responsible the bulk of the delay, not the lies that Garland sat on his hands and refused to move forward.
Not to mention the time it took to present evidence to the grand juries.
You want to pretend that this is a simple and easy process when everyone can see the courts bogging down even the careful and deliberate prosecutions Jack Smith produced off of the evidence Garland provided, and from his own investigative efforts.
This posturing Garland critics do pretending that he could have just whipped up something from the news reports and DU posts and moved into court is refuted by the process DOJ uses to bring charges which is outlined above.
It's not the slam dunk his critics pretend, and they don't even present ANY evidence to the contrary other than projections like the one you just made, pointing to time passed like that sophomoric judgment is supposed to suffice for a credible complaint.
You may well get mileage with people with similar simplistic views of this prosecution, but it's just embarrassing for you to anyone who actually follows the details of these prosecutions.
It should be obvious how bogus these complaints are, but critics are actually using the court delays to bash the man who handed over a 'fast moving investigation' to Jack Smith ages ago.
You just look silly pretending he's still responsible for the prosecutions he handed over to an independent prosecutor, and just absurd drafting off of the court delays and other obstruction to reach back and make this false claim about Garland being slow on something back when he was prosecuting 1000's of rioters and riot leaders on charges up to obstruction.
Garland was prosecuting the very perps the Jan, 6 committee said were instrumental to the election interference by Trump, at the same time he was making the evidence he'd gathered admissible in court.
For you and everyone else with these clipped attacks on Garland presented with zero receipts, let me provide mine, because I've actually bothered to look at the actual prosecutions and not the fantasy one that people are playing out in their heads.
...before Trump was indicted, Merrick Garland was quietly in court getting Giuliani & Parnas Etc etc's phone & email records. Garland smartly let J6 panel do their thing while he did his parallel. Jack Smith's filings show DOJ has evidence J6 committee never got.
But there are still people drafting over the top criticisms off of ONE article by WaPo's Carol Leonning claiming DOJ 'waited' or dithered around before the Jan. 6 committee spurred them to act.
It's that insidiously pernicious lie which has obscured the actual work Merrick Garland has done from the beginning, including appointing the special counsel, by his own decision, who accelerated and deepened the investigations into Trump.
Even less is made by critics of the absolute importance of Garland's prosecutors convictions of 1000's of 'foot soldiers,' including convictions for sedition and interfering with the certification of votes by Congress.
It's precisely those convictions for interfering with the vote which are the subject of appeals right now in the Supreme Court. And it's that decision which will determine whether Trump is held accountable for the same criminality.
It should be obvious that, without those convictions of rioters and riot leaders, there wouldn't be firm evidence of Trump's complicity in anything to do with the rioting.
It's not an either/or proposition with these prosecutions. As we see with the civil rights charges brought by Jack Smith, it is the American people's votes at stake in that interference which makes Trump's actions inseparable from the rioters' that Merrick Garland's prosecutors convicted.
But none of that has stopped these Garland attackers from repeating their lies...
emptywheel @emptywheel
Elie Honig once again calling obtaining a warrant targeting Rudy Giuliani on Lisa Monaco's first day on the job "dithering."
And proving he's OBVIOUSLY wrong abt when evidence was obtained in 2022.
emptywheel @emptywheel
I don't understand why people get on TV and confess they don't know how Rudy's phones, seized on Lisa Monaco's first day, jumpstarted leads J6C never pursued. But last I checked, 4/21/21 is before 6/30/21.
emptywheel @emptywheel 32m
But hey, if you're on TV talking about delays, maybe worth talking about the 3 month delay J6C caused, during July to December 2022.
...in case you missed this:
Zoe Tillman @ZoeTillman· Jan 9, 2023
New: Trump ally Rudy Giuliani received a grand jury subpoena in early November from the US attorney's office in DC seeking documents and testimony (before the appointment of DOJ Special Counsel Jack Smith)
The subpoena came from the US attorney’s office in Washington and was issued in early November, before Attorney General Merrick Garland announced the appointment of Special Counsel Jack Smith to oversee investigations into the former president and the Jan. 6 attack on the US Capitol, according to the person, who was not authorized to speak publicly about the matter.
https://www.bloomberg.com/news/articles/2023-01-09/rudy-giuliani-donald-trump-s-ally-gets-subpoena-from-washington-grand-jury
and...
Feds raided Rudy Giuliani’s home and office in 2021
https://apnews.com/article/rudy-giuliani-2021-federal-raid-ukraine-57bac6d437b86a3ff5bb1f4b5db5aaf5
and this...
Politico: Prosecutors eyed obstruction charges months before Jack Smith took over Trump case
A newly unsealed court document underscores the Justice Department’s long pursuit of evidence to support the obstruction allegations now lodged against Trump.
A newly unsealed court document underscores the Justice Department’s long pursuit of evidence to support the obstruction allegations now lodged against Trump.
https://www.politico.com/news/2023/12/19/obstruction-charges-jack-smith-trump-case-00132500
___ Jack Smith (took) over a staff already nearly twice the size of Robert Mueller’s team of lawyers who worked on the Russia probe. A team of 20 prosecutors investigating January 6 and the effort to overturn the 2020 election (moved) to work under Smith, according to multiple people familiar with the team.
Smith also (took) on national security investigators already working the probe into the potential mishandling of federal records taken to Mar-a-Lago after Trump left the White House.
Together, the twin investigations already established more evidence than what Mueller started with, including from a year-long financial probe that’s largely flown under the radar.
“Mueller was starting virtually from scratch, whereas Jack Smith is seemingly integrating on the fly into an active, fast-moving investigation,” said Elie Honig, a former federal prosecutor and senior CNN legal analyst.
https://www.cnn.com/2022/12/11/politics/jack-smith-special-counsel-high-profile-moves-trump-criminal-investigations/index.html
____the other investigative team, looking at efforts to block the transfer of power from Trump to President Joe Biden after the 2020 election, had even a year ago been given the greenlight by the Justice Department to take a case all the way up to Trump, if the evidence leads them there, according to the sources. Work that’s been led by the DC US Attorney’s Office into political circles around Trump related to January 6 now will move under the special counsel.
Partly led by former Maryland-based federal prosecutor Thomas Windom, DOJ has added prosecutors to the January 6 team from all over the department in recent months. Windom and the rest are also expected to move over to the special counsel’s office. Some, like Mary Dohrmann, a prosecutor who’s worked on several other Capitol riot cases already, appear to be reorienting, according to court records of open Capitol riot cases.
Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.
In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said. (credit Garland)
In interviews with people in Trump’s orbit over the past several months, some of the DOJ focus has been on the timeline leading up to January 6 and Trump’s involvement and knowledge of potential events that day, according to a source familiar with the questioning.
https://www.cnn.com/2022/12/11/politics/jack-smith-special-counsel-high-profile-moves-trump-criminal-investigations/index.html
Before Jack Smith was appointed, Merrick Garland:
Seized John Eastman's phone
Seized Jeffrey Clark's phone
Seized Scott Perry's emails
Seized Eastman's emails
Seized Epshteyn's phone
Seized Mike Lindell's phone
Seized Mike Roman's phone
Seized Scott Perry's phone
Got Kash Patel's testimony
Appointed Windom
Appointed Cooney
Subpoenaed the fraudulent electors
Subpoenaed 7 state's election officials
Subpoenaed Sidney's PAC
Subpoenaed Rudy
Opened IG probe into Clark
Opened IG probe into DoJ response to 1/6
Negotiated subpoena for Meadows
Battled the 11th circuit for classified docs
Subpoenaed trump for classified docs
Subpoenaed trump for surveillance video
Executed a search warrant on trump
Convicted Bannon of contempt
Indicted Navarro for contempt
Subpoenaed the speakers from 1/6
Subpoenaed the organizers of 1/6
Secured seditious conspiracy convictions
Subpoenaed records for any member of congress involved in 1/6
Subpoenaed info on Jenna Ellis
Secured testimony from Mark Short
Secured testimony from Jacob Engel
Secured testimony from Philbin
Secured testimony from Cippollone
Subpoenaed info on trump's PACs
Won privilege battles for Short, Engel, and the Pats
Negotiated for Pence's subpoena
Seized the phone records of Meadows
Secured the 1/6 committee transcripts
Subpoenaed 7 secretaries of state
But there are still people drafting over the top criticisms off of ONE article by WaPo's Carol Leonning claiming DOJ 'waited' or dithered around before the Jan. 6 committee spurred them to act.
It's that insidiously pernicious lie which has obscured the actual work Merrick Garland has done from the beginning, including appointing the special counsel, by his own decision, who accelerated and deepened the investigations into Trump.
Even less is made by critics of the absolute importance of Garland's prosecutors convictions of 1000's of 'foot soldiers,' including convictions for sedition and interfering with the certification of votes by Congress.
It's precisely those convictions for interfering with the vote which are the subject of appeals right now in the Supreme Court. And it's that decision which will determine whether Trump is held accountable for the same criminality.
It should be obvious that, without those convictions of rioters and riot leaders, there wouldn't be firm evidence of Trump's complicity in anything to do with the rioting.
It's not an either/or proposition with these prosecutions. As we see with the civil rights charges brought by Jack Smith, it is the American people's votes at stake in that interference which makes Trump's actions inseparable from the rioters' that Merrick Garland's prosecutors convicted.
But none of that has stopped these Garland attackers from repeating their lies...
Thomas Windom, a little-known federal prosecutor, is overseeing key elements of the Justice Department’s intensifying investigation into efforts to overturn the 2020 election results.
https://www.nytimes.com/2022/06/28/us/politics/trump-investigation-thomas-windom.html
emptywheel @emptywheel
Elie Honig once again calling obtaining a warrant targeting Rudy Giuliani on Lisa Monaco's first day on the job "dithering."
And proving he's OBVIOUSLY wrong abt when evidence was obtained in 2022.
emptywheel @emptywheel
I don't understand why people get on TV and confess they don't know how Rudy's phones, seized on Lisa Monaco's first day, jumpstarted leads J6C never pursued. But last I checked, 4/21/21 is before 6/30/21.
emptywheel @emptywheel 32m
But hey, if you're on TV talking about delays, maybe worth talking about the 3 month delay J6C caused, during July to December 2022.
...in case you missed this:
Zoe Tillman @ZoeTillman· Jan 9, 2023
New: Trump ally Rudy Giuliani received a grand jury subpoena in early November from the US attorney's office in DC seeking documents and testimony (before the appointment of DOJ Special Counsel Jack Smith)
The subpoena came from the US attorney’s office in Washington and was issued in early November, before Attorney General Merrick Garland announced the appointment of Special Counsel Jack Smith to oversee investigations into the former president and the Jan. 6 attack on the US Capitol, according to the person, who was not authorized to speak publicly about the matter.
https://www.bloomberg.com/news/articles/2023-01-09/rudy-giuliani-donald-trump-s-ally-gets-subpoena-from-washington-grand-jury
and...
Feds raided Rudy Giuliani’s home and office in 2021
https://apnews.com/article/rudy-giuliani-2021-federal-raid-ukraine-57bac6d437b86a3ff5bb1f4b5db5aaf5
and this...
Politico: Prosecutors eyed obstruction charges months before Jack Smith took over Trump case
A newly unsealed court document underscores the Justice Department’s long pursuit of evidence to support the obstruction allegations now lodged against Trump.
A newly unsealed court document underscores the Justice Department’s long pursuit of evidence to support the obstruction allegations now lodged against Trump.
https://www.politico.com/news/2023/12/19/obstruction-charges-jack-smith-trump-case-00132500
___ Jack Smith (took) over a staff already nearly twice the size of Robert Mueller’s team of lawyers who worked on the Russia probe. A team of 20 prosecutors investigating January 6 and the effort to overturn the 2020 election (moved) to work under Smith, according to multiple people familiar with the team.
Smith also (took) on national security investigators already working the probe into the potential mishandling of federal records taken to Mar-a-Lago after Trump left the White House.
Together, the twin investigations already established more evidence than what Mueller started with, including from a year-long financial probe that’s largely flown under the radar.
“Mueller was starting virtually from scratch, whereas Jack Smith is seemingly integrating on the fly into an active, fast-moving investigation,” said Elie Honig, a former federal prosecutor and senior CNN legal analyst.
https://www.cnn.com/2022/12/11/politics/jack-smith-special-counsel-high-profile-moves-trump-criminal-investigations/index.html
____the other investigative team, looking at efforts to block the transfer of power from Trump to President Joe Biden after the 2020 election, had even a year ago been given the greenlight by the Justice Department to take a case all the way up to Trump, if the evidence leads them there, according to the sources. Work that’s been led by the DC US Attorney’s Office into political circles around Trump related to January 6 now will move under the special counsel.
Partly led by former Maryland-based federal prosecutor Thomas Windom, DOJ has added prosecutors to the January 6 team from all over the department in recent months. Windom and the rest are also expected to move over to the special counsel’s office. Some, like Mary Dohrmann, a prosecutor who’s worked on several other Capitol riot cases already, appear to be reorienting, according to court records of open Capitol riot cases.
Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.
In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said. (credit Garland)
In interviews with people in Trump’s orbit over the past several months, some of the DOJ focus has been on the timeline leading up to January 6 and Trump’s involvement and knowledge of potential events that day, according to a source familiar with the questioning.
https://www.cnn.com/2022/12/11/politics/jack-smith-special-counsel-high-profile-moves-trump-criminal-investigations/index.html
Before Jack Smith was appointed, Merrick Garland:
Seized John Eastman's phone
Seized Jeffrey Clark's phone
Seized Scott Perry's emails
Seized Eastman's emails
Seized Epshteyn's phone
Seized Mike Lindell's phone
Seized Mike Roman's phone
Seized Scott Perry's phone
Got Kash Patel's testimony
Appointed Windom
Appointed Cooney
Subpoenaed the fraudulent electors
Subpoenaed 7 state's election officials
Subpoenaed Sidney's PAC
Subpoenaed Rudy
Opened IG probe into Clark
Opened IG probe into DoJ response to 1/6
Negotiated subpoena for Meadows
Battled the 11th circuit for classified docs
Subpoenaed trump for classified docs
Subpoenaed trump for surveillance video
Executed a search warrant on trump
Convicted Bannon of contempt
Indicted Navarro for contempt
Subpoenaed the speakers from 1/6
Subpoenaed the organizers of 1/6
Secured seditious conspiracy convictions
Subpoenaed records for any member of congress involved in 1/6
Subpoenaed info on Jenna Ellis
Secured testimony from Mark Short
Secured testimony from Jacob Engel
Secured testimony from Philbin
Secured testimony from Cippollone
Subpoenaed info on trump's PACs
Won privilege battles for Short, Engel, and the Pats
Negotiated for Pence's subpoena
Seized the phone records of Meadows
Secured the 1/6 committee transcripts
Subpoenaed 7 secretaries of state
...oh, and I didn't spend my time posting this just for you, although it appears you could do with a refresher.