Special Counsel Jack Smith’s explosive 165-page filing alleging that Donald Trump knew his claims were false and his efforts to cling to power were illegal is the most damning evidence yet against the ex-president, but some legal experts argue it also serves as an indictment of the U.S. Supreme Court.
Smith filed his brief, “the most comprehensive look at the evidence federal prosecutors have amassed in their case,” CBS News reports, last week under seal. U.S. District Judge Tanya Chutkan, who is overseeing the election interference and subversion case against Trump and was directed by the Supreme Court to determine which of Trump’s actions were “official acts” not subject to prosecution, released the motion on Wednesday. Smith’s filing contains “damning evidence against Trump,” as MSNBC reported, never before seen by the American public.
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” Smith’s filing reads. “With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost.”
Some legal experts are angered at the Supreme Court’s actions which have delayed the trial, and, should Trump win re-election, they say, have effectively killed it.
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“The unsealed evidence in the January 6 case underscores how outrageous it was that the Supreme Court blocked Donald Trump’s criminal trial this year. It amounts to a judicially executed cover up,” charges Michael Waldman, President of the Brennan Center for Justice. Waldman was appointed by President Joe Biden in 2021 to the Presidential Commission on the Supreme Court of the United States, which issued a report on court reforms.
Special Counsel Jack Smith, knowing Donald Trump’s claims of “presidential immunity” ultimately would be adjudicated by the Supreme Court, had asked the Court on December 11, 2023 to rule on the ex-president’s assertions. In making what he acknowledged was “an extraordinary request,” as SCOTUSblog reported, the Special Counsel “contended that it ‘is of paramount importance’ that Trump’s claims of immunity ‘be resolved as expeditiously as possible.’”
Urging “a cautious, deliberative manner,” and not a resolution at “breakneck speed,” Trump’s lawyers told the Court they opposed expedited review. “Haste makes waste,” they said, according to SCOTUSblog.
One day later Smith replied, writing that the “public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court.”
On December 22, the Court refused.
It wasn’t until April 18, 2024, that the Supreme Court agreed to hear Trump’s claims of presidential immunity. The Court heard oral arguments one week later, on April 25, but waited until the last day of its session, July 1, to release what became its landmark 6-3 ruling on presidential immunity. From the point where Smith first asked the Court to resolve the issue to the date it handed down its decision was more than six months.
Marcy Wheeler, who writes about civil rights and national security, dug into the 165-page filing and slammed the Chief Justice.
“John Roberts not only rewrote the Constitution to protect Donald Trump,” Wheeler charges. “He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.”
“This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.”
Professor of law Richard “Rick” Hasen, an internationally-recognized expert in election law and campaign finance, on Wednesday blasted the Supreme Court.
“Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court,” is Hasen’s headline at Slate. In it, he explains his “anger is at the Supreme Court for depriving the American people of the chance for a full public airing of Donald Trump’s attempt to use fraud and trickery to overturn Joe Biden’s 2020 presidential victory before voters consider whether to put Trump back in office beginning January 2025.”
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He warns, “there is about an even chance that this will be the last evidence produced by the federal government of this nefarious plot. If Donald Trump wins election next month, the end of this prosecution is certain and the risks of future election subversion heightened.”
“And now,” Hasen laments, “perhaps the most important case in American history may never get to a jury and the American public will never get a chance to learn about this evidence and a jury’s judgment of this evidence before they consider returning Donald Trump to office.”
Hasen blames “then–Senate Majority Leader Mitch McConnell’s refusal to support Donald Trump’s conviction in the Senate after the House impeached him for these activities,” and “Joe Biden’s Attorney General Merrick Garland, who dragged his feet for well over a year before taking decisive action against the biggest threat to American democracy since the Civil War of the 1860s. His timidity is inexplicable and disappointing.”
“But worst of all is the United States Supreme Court,” Hasen charges, before also pointing to the actions of Chief Justice John Roberts:
“The New York Times recently reported on the internal Supreme Court deliberations, and they paint Chief Justice John Roberts, author of the Trump immunity decision, as having turned from a justice known for seeking common ground and minimalist outcomes to one set out to protect the office of the presidency at all costs. The opinion was so focused on the risks to the vigorousness of the activities of future presidents that could come from the threat of future prosecutions that it was willing to ignore the current threat to democracy today from Trump’s actions in 2020, not to mention his continued insistence that he won the last election.”
With damning charges Hasen concludes: “The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.”
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Image: Fred Schilling, Collection of the Supreme Court of the United States