The two federal criminal cases against former President Donald Trump sputtered back to life this week after periods of delay and major legal setbacks.
With 10 weeks left until Election Day, prosecutors in the office of special counsel Jack Smith filed an appeal Monday of Judge Aileen Cannon’s ruling last month dismissing the indictment that accused Trump of mishandling classified documents after leaving office and obstructing the government’s repeated efforts to retrieve them.
Then on Tuesday, Smith took action in a second case, in which Trump stands accused of plotting to overturn the 2020 election. Prosecutors filed a pared-down version of their original indictment that sought to maintain the bulk of the election charges against Trump while also bringing them into line with the Supreme Court’s recent ruling granting broad immunity to former presidents for official acts they took in office.
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Neither of the cases the special counsel is overseeing will go to trial before Election Day, and if Trump regains the White House in November, he will have the power to fire Smith and have both of the proceedings put to rest altogether. Still, Smith appears intent on aggressively pursuing the cases even as the campaign enters its homestretch, and has signaled that he will keep pushing them forward even up to Inauguration Day if Trump wins the election.
Here is how the two prosecutions have gotten to this point of remaining alive but still being mired in legal and political uncertainty.
Election Interference Case
Until a few weeks ago, Trump’s election case had been on hold for nearly eight months, with all proceedings frozen, as a series of federal courts — including the Supreme Court — considered his claims to be immune from prosecution on any charges arising from his official acts as president.
After the Supreme Court ruled in favor of Trump in July, granting him — and all other future former presidents — broad protections against criminal prosecution, the case was sent back to the trial judge, Tanya Chutkan.
As part of their decision, the justices gave Chutkan a daunting and complicated task: She was ordered to sort through Trump’s indictment line by line and make decisions on which of its many allegations would have to be thrown out under the immunity decision and which could survive and go to trial.
Wasting no time, Chutkan set a schedule to decide next steps and eventually settled on a deadline of Friday for Trump’s lawyers and Smith’s prosecutors to send her proposals for how to proceed.
Smith got ahead of that schedule by filing his revised indictment Tuesday afternoon in U.S. District Court in Washington.
The new indictment kept the basic structure of the old one, retaining all four of the original charges against Trump. Prosecutors are still accusing him of overlapping plots to defraud the United States, to obstruct the certification of the election at the Capitol on Jan. 6, 2021, and to deprive millions of Americans of their rights to have their votes counted.
Perhaps the most significant change in the new indictment was that Smith removed all of the allegations that touched on Trump’s attempts to strong-arm the Justice Department into supporting his false claims that the election had been rigged against him.
In its ruling on immunity, the Supreme Court had struck those charges from the case, finding that Trump could not face prosecution for any of his interactions with Justice Department officials. The court decided that a president’s dealings with the department were part of the core official duties of his office and were thus immune from prosecution.
Smith’s deputies also made many other subtle changes, reframing the charges in a way that couched them as acts Trump had taken in his private role as a candidate for office, not in his official capacity as president.
The tone of the new indictment was apparent in its first paragraph, which described Trump as “a candidate for president of the United States in 2020.” The original charging document had referred to him as “the 45th President of the United States and a candidate for reelection in 2020.”
Chutkan, who was appointed to the bench by President Barack Obama, still has the authority to determine how much of the new indictment can survive under the immunity ruling. In that sense, Smith was setting out his opening position in the coming courtroom battle.
Whatever Chutkan decides, Trump’s lawyers — or Smith, for that matter — will be able to appeal any decisions she makes to higher courts, including the Supreme Court. She is likely to offer her vision of how things will unfold at a hearing scheduled to take place in Washington on Sept. 5.
Classified Documents Case
In a stunning decision last month, Cannon threw out the classified documents case in its entirety, ruling that Smith had been illegally appointed to his post as special counsel.
The ruling shocked many legal experts for the way that it upended a quarter-century of Justice Department practice and flew in the face of previous court decisions about the appointments of special prosecutors reaching back to the Watergate era.
Issued on the first day of the Republican National Convention, the decision also gave Trump a major legal victory at an auspicious political moment.
Cannon based her dismissal of the case on the appointments clause of the Constitution. The clause requires presidents to nominate and the Senate to confirm all principal officers of the government, but allows “inferior officers” to be put in place by leaders of federal departments, including the attorney general, under the guidance of specific laws.
In her ruling, Cannon found that there were no specific laws that authorized Attorney General Merrick Garland to name Smith to the post of special counsel in November 2022. She also found that Smith’s appointment was illegal because he had not been named by the president and confirmed by the Senate.
But in their challenge to the 11th U.S. Circuit Court of Appeals, Smith’s deputies pointed to four current statutes that they believe give the attorney general the authority to name special counsels.
They also argued that independent prosecutors have long been used to conduct sensitive political investigations, reminding the appeals court that the practice reached back to the days when Jefferson Davis, the Confederate leader, was charged with seditious conspiracy after the Civil War.
The same appeals court that will now consider whether to uphold or overrule Cannon reversed her in a related proceeding last year.
In that instance, Cannon had intervened in a civil case tied to the documents investigation. She barred the Justice Department from using any documents that FBI agents had seized in the search of Mar-a-Lago, Trump’s Florida club and residence, until an independent arbiter had sorted through them for any that were privileged.
The decision was quickly reversed in a stinging ruling by the appeals court, which said she never had legal authority to get involved in the first place.
There will not be any quick resolution of the current appeal. Smith’s appellate brief Monday was merely the start of a legal battle that may ultimately end up in front of the Supreme Court and is likely to drag on until well after the election in November.
Trump’s lawyers are scheduled to file their own brief to a three-judge panel of the 11th Circuit in late September, after which the court is likely to schedule a hearing for oral arguments.
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