Politics
How Jack Smith’s giant motion tries to pass John Roberts’ vague test on Trump immunity
Special counsel Jack Smith’s big immunity brief is here. The 165-page (somewhat redacted) motion lays out whyin the government’s view, the Supreme Court’s immunity ruling doesn’t stop Donald Trump from standing trial in his federal election interference case.
As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence, whom Trump pressured to subvert the 2020 presidential election.
As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence.
To understand the Pence analysis, recall that Chief Justice John Roberts’ July 1 ruling in Trump v. United States granted absolute immunity for “core” presidential acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. While the high court’s Republican-appointed majority said that it’s up to U.S. District Judge Tanya Chutkan to perform the immunity analysis in the first instance, the justices gave the Washington judge a head start in some parts, including with Pence. They said that whenever Trump and Pence discussed “their official responsibilities” — namely regarding Pence’s certification of Electoral College votes on Jan. 6, 2021 — they had engaged in “official conduct.”
That means Trump would have presumptive immunity for those alleged actions, which Smith would need to rebut. Roberts’ opinion (rather vaguely) said that can be done by showing that the prosecution wouldn’t “pose any dangers of intrusion on the authority and functions of the Executive Branch.” So that’s why Smith wrote in the motion that because that branch “has no role in the certification proceeding — and indeed, the President was purposely excluded from it by design — prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.” (The vice president is involved in certification via the office’s role as president of the Senate.)
The special counsel further wrote that Trump “sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.” Therefore, Smith wrote, prosecuting Trump wouldn’t “pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch.”
Smith’s team also made clear in the filing that prosecutors intend to introduce more evidence at trial related to Pence, who is not accused of any wrongdoing. For instance, they want to introduce evidence of what they call unofficial communications that Trump had with Pence in their capacity as candidates (not as president and vice president), including when Pence “tried to encourage” Trump “as a friend” when news networks began to call the 2020 race for Joe Biden, and later when Pence suggested that Trump should recognize the process was over and run again in 2024. Even if those communications were deemed “official,” Smith wrote, the immunity presumption would be rebutted there too, he argued.
To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty.
To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty. And if the former president wins next month’s presidential election, he’ll be empowered to dismiss the case entirely.
But if Trump loses, then Chutkan would have a heavy task ahead in weighing the voluminous allegations and evidence Smith presents in the monster filing and deciding whether it passes the high court’s (again, rather vague) immunity test. Ultimately, whatever the judge rules will be subject to review again by the justices before any trial can go forward. That won’t happen before the election.
The case will either be killed soon by way of a Trump victory or will linger on for months, if not years, to first determine whether the Supreme Court will even let Trump stand trial over any of these allegations.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.
Politics
Trump wants the Postal Service to radically overhaul mail voting. But ballots are already going out.
President Donald Trump’s controversial demands for the Postal Service to overhaul and monitor millions of mail ballots hit another snag on Friday, when North Carolina became the first state in the nation to start sending out ballots for the November election.
In March, Trump signed the initial executive order, which aimed to crack down on mail-in voting — which he regularly alleges without evidence is a vector for widespread voter fraud — and assert an unprecedented amount of federal control over the upcoming elections.
Under this order and the subsequent rule drafted by the U.S. Postal Service, the USPS would refuse to deliver ballots to states that failed to provide lists of eligible mail voters or did not adhere to an approved envelope design style.
Since then, the order has faced legal challenges, and it remains paused by a federal judge’s orders. But the Trump administration has asked the Supreme Court to allow the new rule to proceed — something current and former election officials from both parties say would be both a legal nightmare that oversteps the federal government’s traditional role in elections and a logistical one that is happening far too close to the November election to implement even if they agreed with it.
“Why the hell are you rocking the boat this late in the game?” said Stephen Richer, a former Republican recorder of Maricopa County, Arizona, who has clashed with Trump allies for defending the security of the 2020 election.
Still, election officials are trying to project a sense of normalcy for voters, particularly in North Carolina, which serves as a test of whether established local election systems can operate normally amid intensifying federal scrutiny.
“I want to emphasize this point because there has been a lot of outside noise: Our county workers are ready,” Sam Hayes, a longtime Republican lawyer in the state and now executive director of the North Carolina State Board of Elections, said in a Thursday afternoon press conference.
He added, “All we can do is what we’re doing. … It is business as usual as far as I’m concerned.”
Despite the legal challenges, the Trump administration has continued to press the courts to let it proceed. The Trump administration asked the Supreme Court on Thursday to lift an order from a Massachusetts judge which temporarily prevents the USPS from enforcing their rule. It is the second time the Trump administration has asked the Supreme Court to step in, after winning an earlier victory in which the high court dismissed an earlier hold on the rule as premature.
“The uncertainty is coming from a single activist judge who continues to try and obstruct President Trump from implementing commonsense measures to protect the security of mail-in ballots and ensure only Americans vote in American elections,” White House spokesperson Lauren Bis said in a statement. “These safeguards for mail ballots were proposed months ago giving election officials ample time to prepare for the 2026 election.”
The USPS did not immediately respond to requests for comment.
Election officials said that if the rule goes into effect this close to November, it would cause chaos and place added strain on the USPS and election officials. And an anonymous federal whistleblower said in a report circulated earlier this week by Sen. Richard Blumenthal (D-Conn.) that the USPS was moving forward in a “secretive, rushed, chaotic, and fundamentally flawed process” to try to implement the new system ahead of the midterms.
In the coming weeks, states across the country will follow North Carolina’s lead. Nine other states will begin mailing ballots in the next two weeks, according to a tracker from the National Conference of State Legislatures — with the biggest day for mailing coming 45 days before the election in mid-September.
“It would be so outrageous to try to let this go into effect. It’s hard to even imagine,” said Ben Hovland, a senior fellow for democracy at the progressive think tank Center for American Progress and former Democratic commissioner with the Election Assistance Commission who was fired by Trump in July.
He added, “It would be a break-glass moment for our democracy.”
The rule would require meticulous changes to ballot handling and tracking practices that Hovland said are impossible to implement before Election Day in about two months, effectively disenfranchising millions of voters.
“Ballots are printed. Envelopes are printed. You can go on and on with all the practical reasons that show that implementing something like this at this time is not feasible,” he said.
Richer said he doubted the new rules would bring about more security. Even if the USPS received lists from the states, according to the postal service’s final rule, it would not do any additional vetting of the list, Richer said.
“It’s just that the mail ballots have to be on that list, and I don’t see what added value for election integrity that does,” he said.
He added, “It creates a lot of administrative burden, and I think it creates a lot more opportunity for error.”
While a decision looms in the courts, election officials and experts cast doubt on the likelihood of the rules going into effect before November. A more pressing issue, they said, is the confusion and uncertainty surrounding mail-in ballots, which could subvert and change the behaviors of voters.
“It makes things seem messy or difficult, and it can dissuade people from participating or coming out to vote,” Hovland said. “It certainly also helps establish a pretext to make bad faith claims about election results.”
Hovland said that while none of these claims of voter fraud are backed up with facts, they could cause Americans to lose faith in the voting process.
Still, some current officials contended they were well-prepared for whatever happens — and that they’d be able to communicate effectively with voters who have become increasingly buffeted by dramatic rhetoric about the once-unmentioned nuts and bolts of actually running an election.
“There’s always a lot of noise around elections, that’s not going to change, and it can be hard to differentiate that from what’s actually going on on the ground,” said Jason Tyson, director of external affairs for the North Carolina State Board of Elections.
As Election Day approaches, Tyson and election officials said they urge voters to check their registration status and make a plan to vote.
He added, “I think we’ve got a really well-trained, solid staff who are ready, and who have gone through all of the checks and balances and points of contact that we need to do to get to where we are.”
Missouri’s Supreme Court suspended a congressional map that state Republicans drew last year that would have netted the GOP an additional House seat, likely keeping the seat in Democratic hands this November.
The court ruled unanimously on Thursday that a referendum petition organized by Democrats to put the new congressional maps to a vote was incorrectly deemed insufficient by Republican Secretary of State Denny Hoskins, and ordered that the gerrymandered map be put to a vote in the fall.
Voters will ultimately decide the fate of the new lines in November. But in the meantime, it cannot be in place for the midterms, meaning Rep. Emanuel Cleaver’s original Kansas City-based district will likely stay in Democrats’ hands this fall.
Construction crews could begin the excavation process for what will be President Donald Trump’s massive 250-foot-tall arch in as soon as the next two weeks, Interior Secretary Doug Burgum announced on Thursday.
The monument — which will be erected in a traffic circle at the head of the Memorial Bridge over the Potomac River, coming between the Lincoln Memorial and Arlington Cemetery — has generated controversy as concerns emerged about the design and traffic congestion during construction.
The arch would take two to three years to construct on the proposed schedule, according to documents released in June.
“We are pleased to announce that after a very long wait (over 125 years!), we are preparing to start, over the next two-week period, the excavation work necessary for the Great Triumphal Arch and Military Observation Deck,” Burgum said in a social media post.
The 250-foot-tall arch will be among Trump’s most visible projects, as the administration continues its attempts to remake Washington. Critics, however, have voiced fears that the structure may be too large, and overshadow other monuments, like the Lincoln Memorial on the other side of the Potomac River.
The proposed arch will dwarf the Arc de Triomphe in Paris in size. It is unclear at this time how much construction will cost; the National Endowment for the Humanities earmarked $15 million for the monument.
“This will be one the the Great Pieces of American Architecture, honoring the history and significance of Arlington National Cemetery and befitting the most powerful Capital in the World,” Burgum said.
The monument will be constructed on land overseen by the National Park Service, and critics have argued Trump’s latest project requires explicit congressional approval. However, the Interior secretary continues to rebut these claims.
Instead, Burgum echoed previous statements and said historically “Congress and various congressionally chartered commissions decreed that a monumental work should adorn Columbia Island,” the traffic circle where the monument is planned to be constructed.
“Despite Congress’s intent, the site became and remains today a barren traffic circle lacking any monumental treatment and significant historic value,” he said.
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