Friday Round Up! 10/4/24

Special Counsel Jack Smith brings the receipts. (And no, it's not a "cheap shot.")

I am still making my way through Special Counsel Jack Smith’s 165-page motion on the D.C. district court’s immunity determination in the January 6 case, which was unsealed a few days ago. You’ve probably already seen some of the details that Smith intends to introduce at trial, things that weren’t necessarily surprising game-changers, but still shocking to the conscience nonetheless.

Renato and I will discuss these details, and their probative value, when we record our podcast later today (and which will be released on Monday morning on you favorite podcast platform). For now, though, let’s quickly review Smith’s general legal argument. In case you need a refresher on the Supreme Court’s somewhat convoluted approach to determining immunity, here is a handy flowchart that goes through the legal decision tree:

You’ll see that there are basically three pathways: The first includes acts that fall within core executive functions, which have “absolute immunity.” Anything that falls in this category is off the table, do not pass GO, do not collect $200. The Court has already determined that Trump’s conversations with his Acting Attorney General, Jeffrey Clark, about sending a letter to state election officials making false claims of voter fraud, fall into this category. So, this entire criminal subplot has been stripped from Smith’s charges.

The second category is anything that fall in the “outer perimeter” of executive duties — borrowing a phrase from a Nixon-era case extending immunity to presidents in the civil context — which have “presumptive immunity.” Trump’s conversations with Vice President Mike Pence fall into this category. Smith seeks to rebut the presumption of immunity by arguing that these do not intrude on functions of the executive branch because they were occurring in each individuals’ capacity as running mates, not executive branch officials.

In other words, Smith wants to move this entire set of acts to the right side of the chart, which include unofficial acts which have no immunity, and are fair game. Here, Smith argues, is where everything else outlined in the indictment falls, from Trump’s attempts to corral fake electors to his tweets egging on the mob already attacking the Capitol. And if you need a refresher on how all of these moving parts fit together into the larger scheme, here is another helpful graphic:

I do want to take issue with a hot take by one influential legal commentator accusing Smith of taking a “cheap shot” by filing his motion so close to the election, and that he is doing so in order to “chip away at Trump’s electoral prospects.” ??? Let’s please be real. The timing of this motion was determined by 1) Trump’s own endless dilatory tactics and 2) the Supreme Court’s decision to take its sweet time deciding the immunity issue. The Court itself has sent the issue back to the district court to make the “fact-specific determinations” on whether the charged acts or evidence to support them are immune from prosecution. Finally, the Justice Department’s “90 day rule” (which states that the department should not select “the timing of investigative steps or criminal charges for the purpose of affecting any election”) concerns investigative steps or charges being filed close to an election— the idea being that doing something like executing a search warrant, or indicting someone, three months before an election places that person under a cloud of suspicion without time to clear their name (a similar rationale given by Special Counsel Robert S. Mueller III when he chose not to make a determination on whether Trump should be charged for obstruction of justice). But hello, that ship has sailed here: Trump was indicted almost a year and a half ago — and, in any case, Judge Tanya Chutkan isn’t bound by an internal policy of a completely different branch.

It may well be that some of these details coming to light six weeks before the election is inconvenient to Trump. But the bottom line is that there isn’t anything that new in this filing that wasn’t already exposed by either the January 6 Committee hearings or, frankly, the events of January 6 itself. Accusing a special counsel of having political motives based on nothing but the timing of a court filing is irresponsible, especially at a time when the rule of law is being eroded and delegitimized. That, in my opinion, is a “cheap shot.”

Anyway, I look forward to unpacking this all in the next pod with Renato. In the meantime, we took a look at two non-Trump cases that highlighted how our politics — at every level — are increasingly vulnerable to foreign influence. And more countries are getting in on the game:

Articles worth reading:

• As usual, Just Security has saved the day by creating an annotated version of Smith’s filings that helpfully fills in the blanks with the names of the co-conspirators. Enjoy!

Upcoming events:

• NEW! Wine & Fries Club Workshop: INTEL BRIEF: Who Wants Your Data and Why, Sunday, October 27, 8 p.m. EDT. In light of the seemingly endless parade of DOJ indictments against rogue actors for foreign influence in our political and electoral system, I will be offering founding members a chance to hear my talk that uses the U.S. Intelligence Community’s current Annual Threat Assessment to explain in lay terms how our foreign adversaries and use cybertools – including theft, espionage, and hybrid warfare – to facilitate their geopolitical objectives. I recently gave this talk to the Yale community at the invitation of our IT department and one attendee wrote to say it was “the most interesting talk I have attended at Yale.” (!) Zoom link will be sent to founding members three hours prior to the talk and will be recorded and posted after. (NOTE: I may need to reschedule this to another time or day as I am in the process of trying to work out the timing of another commitment — but I will send an email to W&F subscribers with any updates.)

• NEW! Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality (TBA, late October). I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, November 3, 8 p.m. EST. I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

I’ll be in Bali, Indonesia for a conference next week (for real, it’s a legit conference), so I can’t guarantee that I will have a full round up. But even if I don’t, I promise to send a view from the beach!