US Justice Department tries to salvage criminal cases against Trump

Justice Department special prosecutor Jack Smith has been struggling to salvage two criminal cases against former President Donald Trump in separate federal courts that have hit major hurdles.

Attorney General Goes to Fight to Try to Save Cases Against Donald Trump

In one case, Smith appealed to the 11th Circuit Court of Appeals against a decision by Trump-appointed federal judge Ellen Cannon of a Florida federal court, who on July 15 dismissed the 34-count case against the former president for allegedly misappropriating classified information from White House documents.

The judge relied solely on her understanding that Smith’s appointment to serve as a Justice Department special prosecutor was illegal because he had not been confirmed by the Senate. The special prosecutor challenges that understanding based on other justices’ decisions, Supreme Court precedent, congressional authorization, and historical facts.

In another case — the one that brought four counts against Trump for trying to overturn the results of the 2020 election and inciting an invasion of Congress — Smith filed a “supernumerary indictment” in federal court in Washington, D.C.Instead of indictment) for the previous complaint.

Smith justified the action by claiming that it was necessary to amend the complaint in accordance with the Supreme Court's July 1 decision (in Trump vs. United States) Regarding presidential immunity from criminal proceedings: 1) former presidents enjoy absolute immunity for their actions in the exercise of their constitutional powers; 2) presumption of immunity for any other official acts; 3) they have no immunity for their unofficial acts.

Thus, the purpose of the alternative complaint is to partially empty the hearing scheduled by Judge Tanya Chutkan, in order to separate the wheat from the chaff, along with the parties – that is, to remove the allegations involving the former president's official actions and preserve only those referring to unofficial actions. This hearing was considered a “mini-trial” (which is what it should have been anyway).

The Justice Department is trying to revive the case.

In the case in which Trump was accused of obtaining classified and top secret government documents in violation of the oath of office (Article 702) from visaForeign Intelligence Surveillance Act of 1978), and in an attempt to block the FBI's efforts to recover the documents, Judge Ellen Cannon cited Supreme Court Justice Clarence Thomas to support her decision to block the operation.

Thomas questioned the validity of Jack Smith's appointment as special counsel to the Justice Department by writing a concurring opinion in the presidential immunity case — without the issue being raised by any party in the process.

“I write separately to highlight another way in which this process may violate our constitutional framework. In this case, the Attorney General intended to appoint a private citizen to prosecute a former president on behalf of the United States. I am not sure whether the appointment of a special prosecutor was determined by statute, as the Constitution requires. The question remains whether the Attorney General made such an appointment pursuant to the Appointments Clause,” Thomas asked, without offering an opinion.

Historically, the Justice Department has appointed special prosecutors — so called because they are not part of the agency’s legal staff — to avoid conflicts of interest, especially in cases with broad political ramifications. Smith says in his petition that many of those appointments have already been made and upheld by judges when challenged.

The most important of these was the appointment of a special prosecutor to try former President Richard Nixon in connection with the Watergate scandal. In 1974, the Supreme Court ruled United States vs. Nixon“Congress has given the Attorney General the authority to appoint a special counsel to handle the essential duties of the Department.”

Smith wrote that Cannon erred in his ruling, noting that the justices who ruled in the Nixon case had issued no warning to support the judge's understanding that “the appointment of special prosecutors is not legally binding.”

“Attorney General Merrick Garland properly appointed the special prosecutor, who was also properly funded. In holding otherwise, the trial court departed from binding Supreme Court precedent, misinterpreted the statutes that allowed the appointment of the special prosecutor, and did not adequately take into account the attorney general’s long history of special prosecutor appointments,” the Smith team’s motion states.

If the 11th District Court of Appeals reverses Cannon’s decision (as it has already overturned another decision the judge made in Trump’s favor in the past), the process could have two fates: If Trump is elected in November, when he takes office, he will send the Justice Department to dismiss the case; if he loses the election, he will appeal to the Supreme Court.

For American judges, this is the case with the highest probability of the Justice Department getting a conviction for Trump.

The Ministry of Justice submits an alternative complaint.

In the case of Trump’s attempts to overturn the 2020 election in his favor and incite the invasion of Congress on January 6, 2021, the superseding indictment does not raise any of the four charges against the former president: 1) conspiracy to defraud the United States; 2) conspiracy to obstruct an official proceeding; 3) attempt to obstruct an official proceeding; and 4) conspiracy to interfere with voter rights.

In the new versionIn reducing the complaint from 45 to 36 pages, the special prosecutor merely reworded the allegations against Trump and improved the descriptions of the crimes the former president is accused of committing, to align them with the Supreme Court’s ruling on presidential immunity.

Among the charges that were withdrawn were that Trump tried to force the Justice Department to conduct a (rigged) investigation to prove election fraud, and that he tried to persuade election authorities in some states to choose his own delegates to the Electoral College, instead of those who are chosen based on the results of the popular vote.

In addition, one of the six conspirators in the case was omitted from the document because he worked for the Justice Department and his case might have been within the scope of the government’s “official action.” The five conspirators retained are “private attorneys and counsel” who worked with the former president. All would have been acting in their “unofficial capacities,” Smith alleges.

The alternative complaint leaves intact allegations that Trump called on his followers to rally on Jan. 6 and incite them to storm Congress to prevent President Joe Biden’s victory from becoming official. But it eliminates allegations that he ignored for hours his aides’ insistence that the invaders withdraw from Congress.

The complaint alleges that Trump acted as a private citizen and presidential candidate, not as president, and that these were unofficial acts of election interference, as described in the charges against him.