Morning Wire - Trump’s New Legal Peril: Jack Smith’s Latest Move | 9.2.24

Episode Date: September 2, 2024

Special Counsel Jack Smith has revised the federal charges against Donald Trump, responding to the Supreme Court's ruling on presidential immunity. Former federal prosecutor Andy McCarthy joins us to analyze what this means for the ongoing legal battles and the upcoming election. Get the facts first on Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

The lawfare effort against Donald Trump is not dead yet, as special counsel Jack Smith files a revised indictment and multiple appeals loom. While Democrats still hope to take down the former president, Team Trump says they're confident that the Supreme Court's presidential immunity ruling has doomed the cases against him. In this episode, we sit down with former federal prosecutor Andy McCarthy to discuss what comes next in Smith's renewed case, as well as the other lawsuits filed by Democrat prosecutors. I'm DailyWire, editor-in-chief John Bickley with Georgia Howe. It's September 2nd, and this is a special Labor Day edition of Morning Wire.

Joining us now to discuss the revived lawfare effort against Donald Trump as former federal prosecutor Andy McCarthy handy. So we've had some new developments in the lawfare effort against Donald Trump. Special prosecutor Jack Smith has revised and refiled charges against him for election interference. What exactly did we just witness here? Well, I think what we've witnessed is probably from a prosecutor's standpoint, the cleanest and most efficient way to deal with the Supreme Court's opinion in the immunity case. Remember that when the court decided the immunity decision on July 1st, which held that the president has absolute immunity for core executive actions, and at the very least, presumptive immunity for everything. he does within the ambit of his executive power, the court basically directed the lower court,

which be Judge Tanya Chutkin in Washington, to do a searching examination of the allegations and the indictment to sort out what allegations are based on or implicate official acts of the presidency and which ones don't. So what Judge Chukin had done was basically tell the parties, beginning with Smith, that she wanted submissions from them about their vision of what the case would look like going forward and what hearings would be necessary, if any, in order to decide which acts have immunity and which don't. When she first did that she contemplated having a hearing on August 9th, the Justice Department and Smith decided to ask for more time. I think that's because the Justice Department's interests in prosecuting Trump are not aligned with its general interest in defending the presidency.

So they had to make sure that everybody was on the same page about what submission was going to be made to the court. Long story short, Smith was supposed to, by this coming Friday, make his submission about what he thought the case would look like going forward, which allegations would be in and which were out. based on the Supreme Court's ruling. And I think he decided, rather than make a submission on Friday, he would simply supersede the indictment on Tuesday. And what he's done is take out some of the allegations that can't stand after the Supreme Court opinion. I should be clear, he hasn't taken out any counts, like he hasn't taken out any charges, but there are certain aspects of the evidence that can't withstand the Supreme Court's opinion and had to go. so he paired them down.

And that's because it relied on evidence connected to Trump's official duties, is that correct? Not just his official duties, but his duties at the core of his article to constitutional executive power. And just to be clear about that, what the Supreme Court mainly did in the immunity decision was lay out principles for the lower courts to apply in making immunity determinations. The one place where they parted company with that approach was in addressing the allegations and the indictment that accused Trump of using his control of the Justice Department to further the schemes that are charged in the indictment. What Chief Justice Roberts said in the majority opinion was that Trump's control over his subordinates in the executive branch

exercising law enforcement authority, which is a plenary power of the executive branch, is something that Trump has absolute immunity for. So those allegations had to come out of the indictment. So where does that leave things now? What are the next steps for this case? I would break that into two, if we could. The first thing that everybody is most concerned about, and I think rightly so, is what's the impact on the election? We're seven weeks to go, we're going to have a new president on January 25th, whether it's Trump or Harris. So I think this is really a big nothing, because what people I think need to retain as they think about this is that the first thing that Judge Chuckin has to do, no matter when it's done, is examine the charging instrument,

which is now this superseding indictment, to determine which allegations get immunity and which don't. Whatever she decides about that, immunity is one of the few issues in federal criminal law that a litigant is allowed or a defendant is allowed to appeal pre-trial. So whatever she decides, even if she leans in Jack Smith's direction, Trump is going to be able to appeal that to the D.C. Circuit and then ultimately to the Supreme Court. So that issue has to be decided first. And then there are a slew of other issues that would have to be litigated before this case. could get anywhere near being able to go to trial. So there's no way that happens between now and the end of next January. So then we come to what happens after we have a new president. Obviously, if Trump wins the presidency, I imagine if he gets sworn in at 12 o'clock by 1201, Jack Smith will be fired, and they'll try at that point to dismiss the case. There may be some

complications with that that we can talk about. Obviously, it's one approach if Trump wins. namely the case goes away, or he does his best to make it go away. And then the other question is what happens if Harris wins. You would think, and I think this is probably right, that Harris will just retain Jack Smith and let him carry on. And then however long it takes to try the case or litigate these pretrial issues and then ultimately have a trial, he'll be able to be back in business doing that. The alternative, which I think would be very sensible but it would shock me, unfortunately, if Harris did that, would be for Harris to say, you know, look, this lawfare campaign has run its course. It hasn't been good for the country.

I'm supposed to be the candidate who's making a clean break from the past to the extent that she has appeal. It's because she's not Trump. She's not Biden. And it would be a smart thing, I think, for her to say, you know, we've looked at the Supreme Court's immunity decision. and it's a very good decision for the executive branch. We don't want to continue with a litigation against a 78-year-old former president that has the potential of cutting back on the executive branch's immunity interests. And if I were she, I would drop the case for that reason,

because let's face it, the Democrats only ever brought this in order to have an impact on the election. Once the election's over, does she really want this headache? I can imagine the blowback from her own party if she did something, like that being very severe. Now, the picture you painted here is that there will be immediate appeals from Trump's team. If this is allowed to move forward, this appeals process, does this end up in the hands of the Supreme Court again? Yeah, it'll end up in the hands of the Supreme Court again. And I think a second issue will end up in the hands of the Supreme Court, which is the question

of whether Jack Smith has been properly appointed under the Constitution. So that's another issue that's out there that'll have to be resolved pre-trial. And I think it's important to make our listeners understand there's a difference between, obviously, immunity and guilt. If the courts would rule against Trump on at least some of the allegations in Smith's indictment, that is to say that those allegations are based on private conduct, not official acts, and the indictment can go forward as a prosecution, that wouldn't mean that Trump is guilty. He's still has a lot of arguments to make with respect to the legal validity of the charges that have been filed. And even if he prevails there, you still have to go to trial. And Smith still has to prove

the case beyond the reasonable doubt, including proving Trump's intent to commit fraud, which is, you know, it may be harder to do than the prosecutor seems to think. So there's a lot of rounds to be played here yet. And you brought up a key issue, which is whether or not special counsel, Jack Smith was actually appropriately appointed. Where does that stand now? And where do you see that going? Yeah, well, it's very interesting. So the Florida case, the Mar-a-Lago documents case, was dismissed by Judge Aline Cannon in what I thought was a scholarly 93-page opinion, which I think, no matter whether you agree with her bottom line or not, it's clear that she worked very hard on it, took it very seriously and did a workman-like, I'd say better than workman-like job on the

opinion. But she has found that Smith was not qualified to be special counsel because to wield the kind of power a special counsel has, you have to have one of two conditions. Either you have to be appointed by the president and confirmed by the Senate, which Smith was not, or you have to have a position that's created by an act of Congress, a statute. Smith instead was appointed under Justice Department rules, regulations that were promulgated during the Clinton administration. He also claims that there are a slew of congressional statutes that uphold his appointment, but when you parse them carefully, I really don't think they do. And more important than what I think, Justice Clarence Thomas, in his concurring opinion in the recent immunity case, raised this

very issue and went through those statutes and clearly doesn't think that Smith is properly appointed. So instead of doing what I think he should have done, this is Attorney General Garland, which is simply shift Smith, transfer him so that he's under the supervision of the Biden-appointed U.S. attorney in South Florida. then you make this whole issue under the appointments clause of the Constitution go away, and you could be up and running with that case again in five minutes. Rather than doing that, what he's decided to do is appeal to the 11th Circuit, which I think is a peculiar choice because I think there's a very good chance they're going to lose in the 11th Circuit. In the meantime, the same issue is going to be raised in the Washington case in front of Judge

Chuckin. I think in that case, she's going to uphold Smith's appointment, because regardless of whether she thinks Judge Cannon was right or wrong, Judge Cannon's decision does not bind Judge Chuckin. Chuckin has to follow the law of the D.C. Circuit, and a few years back, the D.C. Circuit upheld a challenge on similar grounds to the status of Special Counsel Robert Mueller in connection with the Russia investigation. So she's going to uphold Smith's appointment. I think the D.C. Circuit will uphold it as well. I think the 11th Circuit will agree with Judge Cannon that Smith is improperly appointed,

which means that will land in the Supreme Court's lap too, because when you have a dispute in the circuits over an issue of this importance, the Supreme Court ultimately has to decide it. Sounds like a big mess and two conflicting sort of paradoxical moments there. to put a button on the lawfare campaigns against Trump. We've got the Atlanta case, and we've also got the hush money case that's being appealed. Just in sort of summary fashion, where do we stand with those two cases? Well, the Atlanta case is a clown show.

I mean, it's basically, at the moment, it's in complete suspense because you'll also have immunity litigation in that connection. But before you can even get to that, there's a big litigation under state law, regarding whether Fannie Willis, the prosecutor, has to be disqualified from the case. The lower court has already disqualified the prosecutor-slash-boyfriend that was involved in the case. And that decision, I don't think, made a lot of sense because it seemed to me that you could make an argument that both of them should go or neither of them should go, but having one go and the other stay doesn't make much sense to be.

So the Georgia court, the appellate court, is going to hear argument in that case, but not until December. So we're a long way even from deciding the disqualification issue, and then they'll have to figure out all the immunity stuff. So I think that case isn't going anywhere. And if Willis ultimately gets removed, it could get transferred to another prosecutor who decides to drop the whole thing, which would be the best outcome, I think. As far as the Manhattan case, Trump is scheduled to be sentenced on September 18th on the 34 counts on which he was convicted at trial during the spring. But that case has now been complicated by the immunity issue as well, because I think quite recklessly, the prosecutors introduced during the trial evidence of Trump's official acts. I think it was foolish of them to do that because they didn't need that evidence to prove the charges in the case.

but they did it anyway, even though they knew the Supreme Court was considering this very issue. So the problem they have is they have this evidence in the case, and the Supreme Court has said that you have, you know, that's immune evidence. It shouldn't have come into the case. Trump did object. So right now the schedule is Judge Juan Merchan is supposed to decide the immunity issue on his schedule on September 16th, and then Trump is supposed to get sentenced September 18th. But the problem Merchant has is Trump has a right to appeal the immunity ruling. So even if Merchant rules against him, as everyone expects, he should be able to appeal that to the appellate courts in New York and ultimately to the Supreme Court. And even the district attorney, Alvin Bragg, has conceded that Trump has appellate rights and therefore has suggested or agreed with Trump that the sentencing should be postponed.

As we are speaking today, Judge Marchand has not yet postponed the sentence, but I think he really's going to have to. Yeah, one would think. Andy, thank you so much for talking with us. My pleasure. That was Andy McCarthy, and this has been a special episode of Morning Wire.