THE JOINT STATUS REPORT ON THE IMMUNITY ISSUE IS FINALLY FILED IN THE FEDERAL D.C. PROSECUTION AGAINST TRUMP

Gang,

Welcome to the 26th edition of my Contemplating Coup Convictions (CCC) newsletter.

As I discussed under Heading II in the 24th edition (posted on August 12), on August 9 Judge Chutkan granted Special Counsel Smith’s request in the federal D.C. prosecution against Trump (1) to extend until last Friday the date for the parties to file a joint status report (JSR) stating their positions on how she should deal with the Supreme Court’s remand of the case on the immunity issue and (2) to extend until this coming Thursday the in-court conference on the subject. Here is that JSR, which was timely filed.

In the JSR, Special Counsel Smith does not ask for any sort of evidentiary hearing on the immunity issue. Thus, former federal prosecutor Harry Litman’s earlier assessment was correct that Smith’s having sought a three-week extension signaled that he was not going to ask for an evidentiary hearing. (See Heading II in the 24th edition.) Trump has not asked for a hearing either. Accordingly, there will be no witness testimony in that case prior to the November election, and thus there is no longer any need to rush the case.

Last Tuesday, Smith had filed in the case this superseding indictment, which was voted by an entirely new grand jury, in response to the Supreme Court’s immunity decision. That indictment removes allegations from the original indictment which, Smith believes, are the only allegations that the Supreme Court’s immunity decision would bar.

The lion’s share of the removed allegations cover the discussion in the original indictment of Trump’s attempts to have the Department of Justice officially take the false position that there was fraud in the 2020 presidential election sufficient to change the true outcome. In its immunity decision, the Supreme Court had made clear that discussions a president has with DOJ officials automatically receive immunity from a criminal prosecution.

In the JSR, Smith proposed that, on a date to be set by Judge Chutkan, he would file a brief arguing that none of the allegations contained in the new indictment, as well as none of the additional evidence he contemplates using at trial, would be covered by immunity. It is standard practice for a prosecutor to adduce at trial evidence that is not mentioned in the indictment.

In contrast, Trump proposes in the JSR that Judge Chutkan should set a series of dates for a host of new motions to be made by Trump, including a motion to dismiss the superseding indictment on the ground that Smith’s appointment as special counsel was unconstitutional. That is the basis on which Judge Cannon dismissed the federal Florida indictment in mid-July. (See my twentieth CCC newsletter (posted on July 15).)

Trump asks in the JSR that the immunity issue should be addressed after many of Trump’s newly anticipated motions are addressed. Smith responds that Judge Chutkan should set a parallel briefing schedule for both the immunity issue and any new motions filed by Trump, with the immunity issue to be addressed by her before she addresses any such motions.

Yesterday, Harry Litman posted this Talking Feds video on YouTube in which he discusses the JSR and recaps the heart of Supreme Court’s immunity decision. He calls the new motions that Trump plans on filing “lousy ones all” (at 7:27-7:50), and predicts that Judge Chutkan will not let Trump’s proposed new motions interfere with her addressing the immunity issue first (at 9:01-9:36).

Also yesterday, Just Security posted this comprehensive analysis of the JSR and the Supreme Court’s immunity decision. That analysis includes Just Security’s own recommendation as to how Judge Chutkan should proceed.

Be seeing you,

Brian