Trump's new strategy for the election interference case
Plan A: Win in November. Plan B: Delay until 2028.
🥳 It’s PN’s third anniversary! If you’re not yet a paid subscriber, please support us by taking advantage of a special anniversary offer. Click below to sign up. 🥳
The election interference case is back from its gap year at the Supreme Court, and Trump is back on his BS.
Trump’s lawyers have resumed spewing unsupported allegations of political persecution, only this time the oppressor is “the Biden-Harris DOJ,” not “the Biden Justice Department.” It’s a little too on the nose for a brief accusing the special counsel of playing politics. But more significantly, every filing in this case is now conditional on what happens four weeks from yesterday.
There’s an invisible asterisk on every pleading, dropping to a footnote that says “*Pending results on November 5.” Trump’s corruption is simply taken for granted, and everyone involved knows that, if he gets elected, this case goes away next January 20 when he fires Special Counsel Jack Smith and begins his promised purge of the DOJ. And so the parties are preparing to litigate in a post-election world where Trump is neither the candidate, nor the president. And if he gets walloped, he may even be persona non grata with the powers that be in the GOP.
It’s a vibe shift for the parties and the court itself.
Trump’s Plan: Lose on immunity. Appeal. Repeat forever.
Trump’s strategy has always been to push his criminal cases until after the election. And with the exception of the false business records case in New York, it worked. But even if he loses the election, delay will still be his primary play.
In the first go-round, Trump was able to extract eight months from the DC Circuit and the Supreme Court. That’s because executive immunity is designed to protect a defendant, not just from the verdict, but from the burden of the trial itself. And so, while regular appeals must wait until the trial concludes, immunity rulings can be appealed immediately through what’s known as an interlocutory appeal.
In Trump’s election interference case, Judge Tanya Chutkan denied his motion to dismiss based on presidential immunity on December 1, 2023. Trump immediately appealed, triggering an automatic stay of the case. The DC Circuit heard oral argument in January and issued a comprehensive ruling rejecting Trump’s sweeping immunity claims on February 12 of this year. The Supreme Court granted certiorari and heard oral argument in April. And then the six conservative justices released their massive love note to the former president on July 1, the very last day of the term.
Those justices not only granted him immunity for any actions taken in his official capacity, but they barred prosecutors from using evidence of official acts to convict him for crimes committed in a personal capacity. So out the door went Trump’s efforts to use the Justice Department to steal swing state electors along with all the times his White House advisers told him there was no fraud and he had in fact lost to Biden.
A note from Aaron: Working with brilliant contributors like Liz requires resources. If you aren’t already a paid subscriber, please support PN by becoming one.
For reasons having to do with Supreme Court procedure, the case didn’t wind up back in the DC Circuit for additional 30 days. The appeals court instantly remanded the case to Judge Chutkan on August 2, to comply with the Supreme Court’s instruction “to determine in the first instance — with the benefit of briefing we lack — whether Trump’s conduct in this area qualifies as official or unofficial.”
Naturally Trump, who successfully ensured that this case would take place after the election, if ever, screamed bloody murder.
But in fact, he and Chief Justice Roberts are responsible for the timing here. And if he loses on future immunity motions, Trump hopes to file multiple successive appeals, functionally running out the clock until there’s a Republican in the White House or he shuffles off this mortal coil, whichever comes first.
His strategy is to take every ruling even tangentially related to immunity and appeal it separately, forcing multiple rounds of review and stay, and giving his buddies at the Supreme Court a bunch of chances to either kneecap the case or kill it outright.
Smith’s plan: one appeal to rule them all
The special counsel is not an idiot. He knows what Trump is planning, and he’s become increasingly aggressive about calling it out.
In August, he filed a superseding indictment which he says complies with the Supreme Court’s immunity holding. He knows that Trump will file another motion to dismiss arguing that this new indictment actually is not in compliance, and no matter how Judge Chutkan rules, there will be another round of appeals. But in a recent discovery motion, Smith called out Trump’s bad faith tactics in remarkably blunt fashion and issued an equally blunt request for the court to rule strategically so as to head off Trump’s efforts to engineer multiple appeals that push the trial into 2027 or beyond.
Noting the former president’s “preference for successive, inefficient rounds of appellate review,” the prosecutor asked Judge Chutkan to “refrain from entering an order denying the defendant’s frivolous immunity-related discovery demands at this time.”
“Adopting this course will advance the Court’s ‘responsibility to police the prejudgment tactics of litigants,’ and avoid ‘piecemeal, prejudgment appeals’ that ‘undermine[] efficient judicial administration,’” he urged.
Smith’s request comes in the context of a motion to compel the government to produce evidence that Trump originally filed in November 2023. That document was a hallucinatory recitation of every debunked conspiracy theory about the election and the attack on the Capitol: Solar Winds! Ray Epps! China hacking voting machines for Biden! The gang’s all here!
Trump hopes to force Smith’s team to go spelunking through every government secret to prove that Trump’s lies about the election were true, or at the very least, that he had good reason for distrusting his advisors when they told him he’d lost. Barring that, he’d like to force the prosecutors into a pointless argument about whether any of that stuff was germane or permissible under the rules of evidence. The case was put on hold before Judge Chutkan could rule, but now Trump has revised his demands. He not only wants Smith to repeat the search in light of the Supreme Court’s immunity ruling, but he asks for internal prosecutorial deliberations related to immunity.
This is a naked attempt to trigger a ruling that is nominally related to “immunity” so as to allow Trump to make an interlocutory appeal now, before the parties even consider the revised charges in the superseding indictment. That will waste at least six more months, and then they can repeat the exercise again — or so Trump hopes.
The special counsel counters that internal prosecutorial deliberations are definitionally non-discoverable, and the documents Trump demands have already been turned over.
“For all of these reasons, the Court should reserve ruling on the defendant’s immunity-related demands,” Smith writes. “Specifically, the Court should direct the defendant to try again to do what it previously ordered, and what he could easily have done in the three months since the Supreme Court’s decision: to thoroughly review the expansive discovery he has already received and then make clear demands for any specific contextual evidence related to Presidential immunity that he believes is in the Government’s possession and has been improperly withheld.”
Smith is explicitly calling out Trump for his time-wasting demands and asking Judge Chutkan to time her own rulings so as to ensure that Trump only gets the opportunity to run back to SCOTUS once. And implicitly he’s calling out the Supreme Court for countenancing Trump’s courtroom shenanigans — not to say his crimes — and sending back a ruling so amorphous and full of contradictions that it guarantees multiple appeals as the trial and appellate courts try to work out what the hell the six conservative justices meant.
Judge Chutkan’s Plan: ????
We don’t know yet whether Judge Chutkan will rule strategically so as to deprive Trump of the opportunity to delay this case indefinitely. But it certainly looks like she, too, is feeling the vibe shift.
The court allowed the special counsel to present his opening immunity brief last week, ignoring Trump’s protest that it amounted to election interference and chiding Trump for filing a pointless opposition brief which contained “a single statement” responding to the legal issues in a nine-page motion rehashing old complaints and whining about the unfairness of it all. (Emphasis in the original.)
Chutkan finally called Trump’s lawyers out for their inappropriate use of public filings to air ad hominem attacks on the special counsel.
Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case.
And, most saliently, Chutkan suggested that an immunity ruling in a discovery dispute (as opposed to motion to dismiss) does not allow for an immediate appeal, writing, “The court will rule on the pending motions expeditiously to provide Defendant adequate time to review any additional discovery he receives and incorporate it into his immunity briefing.” (Emphasis added.)
It certainly seems like Trump (and his pals at SCOTUS) have exhausted the patience of the trial judge with their partisan howling and Calvinball rulings. Depending on what happens in four weeks, it’s going to be a knockdown, drag-out fight.
That’s it for today
We’ll be back with more tomorrow. If you appreciate this post, please support PN by signing up. Paid subscribers make this newsletter possible.
Thanks for reading.
So sick of Trumps fighting to extend his cases. He lost, he cheated and his Supreme Court is complicit in it all. In any event Trumps deteriorating mind is plain to see and if people in America just used some critical thinking they would see he is definitely unable to serve anywhere or anything but himself.
Thanks for this excellent update on the January 6 case. The mainstream media seems to be ignoring it for the most part. I thought Jack Smith’s new evidence would be the October surprise I was hoping for, but it hardly registered with The NY Times or the Washington Post. Things have changed dramatically since the 70s.