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.
WASILLA, Alaska — Three weeks out from Election Day, President Donald Trump took a helicopter to a plane to another helicopter to a motorcade to an ice hockey rink in Alaska’s Matanuska-Susitna Valley, traversing nearly 4,000 miles over more than eight hours to turn out his base here to help Republicans defend the Senate.
But Trump’s trek might not be enough to save Sen. Dan Sullivan, who’s running in a tougher-than-expected race against Democrat Mary Peltola in a state where the president’s approval rating is underwater and independents outnumber both Republicans and Democrats.
Alaska strategists and voters who spoke to Blue Light News acknowledged that Sullivan faces a difficult path to reelection, despite Trump’s time investment and the outside money pouring in.
“Very conservative MAGA voters can’t vote for you harder,” said Scott Kendall, a veteran political strategist who worked on two of Alaska GOP Sen. Lisa Murkowski’s campaigns and was chief of staff to former Alaska Gov. Bill Walker. “Donald Trump’s support in this current climate is both a blessing and a curse.”
Even some Trump supporters at the Tuesday night rally admitted the outlook appeared bleak.
“I think Alaska’s turning blue,” said Matt Niessink, a 45-year-old general contractor from Wasilla. He said he had voted for Trump three times and planned to support Republicans this year.
What did he wish the president would do differently? “I wish he’d shut his mouth sometimes and not be such a pompous ass,” Niessink said.
The president was in Wasilla — population 10,556 — because the outlook is darkening for his party in a state he carried by 13 points just two years ago. In a midterm year defined by the cost of gas and groceries, the Last Frontier has been hit particularly hard, with the average price of diesel nearing $7 per gallon. In the Senate race, Peltola is flush with cash and leads Sullivan in most polls. MAGA Inc., the cash-rich Trump-aligned super PAC, is increasingly focusing on Alaska as one in a slate of states that can help Republicans hold the Senate.
Enter Trump, who has been spending the cycle’s crucial final weeks holding rallies in red states to juice support among his base, which tends to see depressed turnout in years when he’s not on the ballot.
“That was a lot of flying,” the president said at the top of his remarks. “In fact, they were thinking about canceling. They said, ‘Sir, you’re very busy, this is very tough.’” But, Trump continued, he refused to cancel for a state he won three times.
Echoing his comments at other red-state rallies, Trump asked the roaring crowd for “one big favor” — to “pretend that I’m on the ballot, because every time I’ve been on the ballot, we win.” He repeated his promise that Americans will receive $5,000 dividends if Republicans hold both chambers.
“What this is about is getting out the vote,” Sullivan told reporters before Trump’s speech. “A rising tide of enthusiasm lifts all the candidates.”
Unlike some other Republican candidates in tight races, Sullivan has shied away from distancing himself from the least popular aspects of Trump’s presidency.
Sullivan proclaimed on stage at the rally that “the conflict in the Middle East is temporary. The true forever war is the national Democrats’ war against Alaska oil and gas and our jobs.” And although a campaign aide released a statement condemning Trump’s move to import Russian diesel, Sullivan did not join four of his Republican Senate colleagues, including Murkowski, who called on Trump to reverse the decision.
Art Hackney, a veteran Republican strategist in Alaska, said that “most of the people who support” Sullivan “think that he should” break more with the president.
Hackney, who runs a pro-Sullivan super PAC called “We Stand with Dan,” attributed that choice to loyalty — but suggested the president’s demand of fealty, and treatment of frequent dissenter Murkowski, could also be part of Sullivan’s calculus.
“A lot of his longtime supporters and the people who are in the industries that would benefit from that wish he would be more blunt,” Hackney said. “But with what Murkowski has done, if Dan did something considered a disrespectful trigger or something, what do you think would happen? It could well have implications for things that affect Alaska’s economy.”
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Some top congressional Republicans have privately concluded that it is likely impossible for them to keep control of the House of Representatives in the midterm elections, and they are now focused on limiting the scale of the defeat and salvaging the party’s Senate majority.
Five senior Republican lawmakers, all granted anonymity to speak candidly about their party’s dire position, told Blue Light News the House had all but slipped away.
One senior House Republican said the GOP’s goal at this point was to “save as many Republican seats as we can.” The president, this person said, was not helping.
“President Trump has made this election all about himself,” the lawmaker said. “Now we have to survive that political storm.”
A second Republican member of Congress said the movement of campaign advertising made plain which side was in control of the midterms. This lawmaker predicted Democrats would pick up about 10 seats, more than enough to take control of the chamber.
Even in newly redistricted red states like Florida and Texas, this person said, Republican candidates were “hanging on with their fingernails.”
Republicans have already fallen back from several contested House districts that they feel are no longer winnable, including those held by Rep. Mariannette Miller-Meeks of Iowa and Tom Kean Jr. of New Jersey. Trump carried their districts just two years ago. The party last week gave up on an Omaha-based district held by retiring Rep. Don Bacon.
Trump officials and other top GOP operatives say more candidates may be cut off in the coming days, in order to shift advertising money to races where it can make more of a difference. Republican groups have already given up on multiple races where they once hoped to unseat Democratic lawmakers.
The Republican Party is under extreme pressure across the Midwest, where it is now spending heavily to defend Senate seats in once-reliably MAGA states like Iowa, Nebraska and Kansas.
Bacon, a maverick often at odds with the White House, said there was no mystery in his party’s political tribulations.
“I’ve talked to some who are making these decisions: The biggest problem is the president’s polling numbers and unfavorables,” Bacon said.
White House officials insist they’re not giving up on either chamber of Congress. In a statement, White House spokeswoman Liz Huston said Trump remained “committed to maintaining Republican majorities in both the House and Senate.”
As he departed on Tuesday to campaign in Alaska for embattled GOP Sen. Dan Sullivan, Trump professed optimism about the midterms but acknowledged that sitting presidents typically see their party lose seats in the off year.
“But I’m doing a tour right now and I’m doing rallies,” Trump added. “The level of enthusiasm for the Republican Party is way up.”
House Speaker Mike Johnson went even further, flatly declaring during a campaign stop in deep-red Texas that “the polling is wrong” in showing his party on the brink of a broad defeat.
Yet at a tactical level, the Republican Party’s moves to shift money away from defending the House and toward saving the Senate are clear enough. In recent days, the Congressional Leadership Fund, the top super PAC for House Republicans, canceled advertising for key House candidates in Nebraska and Iowa and allowed the Senate Leadership Fund – a Republican group focused on the upper chamber – to swoop in and claim the airtime to support Nebraska Sen. Pete Ricketts and Rep. Ashley Hinson, who is running for Senate in Iowa.
“These are not the moves of a party that’s going to keep the House,” a third Republican lawmaker said.
In statements to Blue Light News, both CLF and the National Republican Congressional Committee said they had no intention of giving up on the fight for control of the House.
NRCC spokesperson Mike Marinella said districts are won “one by one,” and that the GOP has “the financial firepower and ground game needed to win.”
Chris Winkelman, president of CLF, said his group would keep moving money around to maximize the impact nationally.
The goal, he said, was to “keep the pressure on the most vulnerable Democrats and preserve a path to 218 seats.”
Former Rep. Carlos Curbelo, a Florida Republican who lost his swing seat in Trump’s first midterm election eight years ago, said his former colleagues were clear-eyed about where the election seemed to be headed.
“The environment is about as tough as one could expect,” Curbelo said. “There is no one who has privately stated that they believe Republicans can hold the House — not in recent weeks, anyway.”
Megan Messerly, Lauren Fedor, Lisa Kashinsky and Myah Ward contributed to this report.
Democratic Sen. Jon Ossoff said Tuesday he will not run for president in 2028 and committed to serving a full six-year Senate term if reelected.
“I have zero interest in running for president. I’m not running for president. I’m running for reelection to the Senate,” Ossoff said during a Georgia Senate debate against Republican Rep. Mike Collins.
Asked by Greg Bluestein of The Atlanta Journal-Constitution whether he would serve his full term if he wins in November, Ossoff replied: “Yes, I will.”
The remarks are Ossoff’s most forceful rejection yet of a potential 2028 presidential bid even as his name has repeatedly surfaced in national Democrats’ conversations about possible contenders for the party’s nomination. His public commitment to a full Senate term on Tuesday is the latest of his campaign’s many efforts to tamp down that speculation.
Ossoff gained national attention this year given his strong fundraising numbers, his consistent lead in public polling against Collins and his ability to generate viral moments on the campaign trail, particularly through his attacks on President Donald Trump. Democrats are bullish about Ossoff’s ability to hold onto his Senate seat — so much so that the Democratic-aligned Senate Majority PAC said Tuesday it was removing its ad spending in Georgia for the week.
He’s also taken steps to boost the state Democratic party in Georgia, a perennial battleground that has been and will be key to winning the presidency. If November brings historic wins up and down the ballot, Ossoff will get some of the credit — and he’ll have confirmed his status as a leader in the swing state.
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