Politics

How Jack Smith’s giant motion tries to pass John Roberts’ vague test on Trump immunity

Published

2 years ago

November 11, 2024

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

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

World Cup fuels ticketing reform demands

Published

13 hours ago

June 21, 2026

Blue Light Newsroom

Demands are growing for a political reckoning over ticket scams at the World Cup — and beyond.

The National Independent Venue Association and Fan Alliance, organizations representing and advocating for entertainment venues and artists respectively, sent a joint letter to Congress on Thursday, calling on lawmakers to ban speculative and ghost tickets, cases where resellers flog tickets they don’t actually have.

The letter — addressed to Speaker Mike Johnson, Senate Majority Leader John Thune, House Democratic Leader Hakeem Jeffries and Senate Democratic Leader Chuck Schumer — includes nearly two dozen accounts of fans who say they were scammed out of thousands of dollars trying to get tickets to the World Cup, which began last week. The groups are also asking fans to share their own stories with elected officials via the Fix the Tix Fan Action Center that launched last week.

“Every one of these stories erodes the public’s faith that consumers should and will be protected from fraud,” NIVA Executive Director Stephen Parker and Fan Alliance founder Donald Cohen wrote. “We urge Congress to work with us to prevent fraud like this in the future and finally enact ticket resale consumer protections that will protect Americans and ensure affordability.”

The letter flagged fans like Dacy Gillespie, who bought World Cup tickets for her sons on Christmas, only to learn on match day — months later — that the seller couldn’t deliver them. And Skylie Shore, who Parker and Cohen said spent well over $6,000 on tickets to the Scotland-Haiti match on June 13, but was forced to wait outside the stadium because she couldn’t access them as fans marched in on gameday.

“These examples reveal a consistent pattern: consumer deception, speculative ticket sales, and broken-hearted American families at the hands of resale ticketing companies like StubHub,” Parker and Cohen wrote.

In a statement, StubHub spokesperson Jack Sterne said that the platform does not allow speculative ticket sales, and blamed FIFA for users’ difficulty in accessing their tickets.

“We understand that attending the World Cup represents a significant investment in time and money, and we take our responsibility to every fan who books through our platform seriously,” Sterne said in a statement. “Many of the issues fans are facing trace back to the event organizer’s technology infrastructure, newly announced transfer restrictions, and a new app that was launched just a month ago.”

In response, FIFA said in a statement that the organization “can guarantee the validity and delivery of tickets purchased through its official platforms” and that FIFA.com/tickets “is the official ticket sales channel” for the tournament.

NIVA and Fan Alliance are urging congressional leadership to place universal price-gouging limits on ticket resale, enact stringent fines on perpetrators and a violation-reporting mechanism for ticket scams, and require secondary ticketing platforms to produce data on ticket fulfillment and consumer complaints.

The groups are not the only ones monitoring for evidence of shady ticket practices. Missouri Attorney General Catherine Hanaway issued a consumer guidance in advance of the tournament, urging match-goers to beware of fraud and promising to hold offenders accountable. And the FBI in May put out a public service announcement, warning fans against purchasing tickets on copycat websites modeled on FIFA’s.

“With the World Cup coming to Kansas City, excitement is high and, unfortunately, so is the potential for fraud,” Hanaway said in her statement. “Missourians should be able to enjoy this once-in-a-generation event without fear of being deceived. My office will hold accountable anyone who seeks to exploit our families, and we stand ready to assist anyone who encounters suspicious activity.”