After Immunity — What Might Be Next In The Florida and DC Trump Prosecutions?


by Shipwreckedcrew

The ramifications of the Supreme Court’s decision in Trump v. United States exactly one week ago are only beginning to be understood and appreciated.

But one conclusion is almost inescapable — neither federal case brought by Special Counsel Jack Smith will get before a jury prior to election day. The same is certainly true of the case brought by Fulton County DA Fani Willis in Georgia.

What impact the decision will have on the convictions suffered in New York State court weeks before the decision is covered at the end of this article.

As for the three cases that have not yet gone to trial, leaving aside for the moment the issue of the disqualification effort involving DA Willis, I want to focus on the hurdles created by the Court’s decision in trying to get any of these three cases to trial having to do with presentation of evidence in a courtroom to a jury – no matter how hungry that jury might be to “skip to the end” and vote to convict.

  1. Justice Thomas’s Concurring Opinion — coming out of nowhere — basically instructing Judge Cannon in Florida on how to write her opinion granting the Trump Defense’s motion to disqualify Special Counsel Smith for not occupying an office “created by law.”
  2. The indictments in all three jurisdictions — District of Columbia, Southern District of Florida, and Fulton County — are all potentially compromised by the improper use of factual evidence before the grand juries that will likely fall within the boundaries of Presidential immunity. There is no clear answer on if/how the filed indictments can be salvaged, and each case may be forced to start over from the beginning without using that material — including many of Trump’s public comments — in order to obtain new indictments.
  3. How the pretrial proceedings in any of three courts will now undergo a prolonged and highly contentious process of isolating and removing any official conduct by President Trump that were within the boundaries of Presidential immunity. Not only will the decisions rendered by each judge likely be processed under different procedures and standards. There will eventually have to be a reconciliation — likely back in the Supreme Court — of any inconsistencies in the outcomes with regard to how the boundaries of “official acts” are determined.

The Concurring Opinion of Justice Thomas.

It was noteworthy that during the oral argument Justice Thomas asked counsel for President Trump if he was making the argument in the D.C. Immunity case that the Special Counsel had not been properly appointed. This issue was not new, as challenges were made to the Mueller Special Counsel in the District of Columbia courts while Trump was in office. Both the District Court and the Appeals Court denied motions seeking to disqualify Mueller’s appointment. But the issue did not make it to the Supreme Court at that time.

But Trump’s defense had not made that argument in the District Court in DC. However, in the Circuit Court, former Attorney General Edwin Meese and others filed an amicus brief raising the issue before that Court. The Special Counsel never responded on the issue in its briefing, and the Trump Defense didn’t attempt to join that argument or incorporate it in any of its briefs since it had not raised the issue in the District Court. The decision of the Appeals Court denying the motion to dismiss based on Presidential immunity was silent on the subject.

Justice Thomas knew all that when he asked his question — but he asked anyway. The arguments both pro and con were made by amici briefs filed with the Supreme Court after it agreed to hear in the immunity issue. But, as was the circumstance in the lower court, the legitimacy of SC Smith’s appointment wasn’t part of the issue the Supreme Court had taken up for appeal.

It would have been highly unusual for any Justice to write an opinion on any issue not within the scope of the question the Court had agreed to consider if the subject was never brought up. Thus, the question posed by Justice Thomas since the amici briefs raised the issue. That was the very purpose of asking the question, and he choose to write a concurring opinion addressing the issue.

When Justice Thomas asked his question during the oral argument in mid-April, the Trump Defense had made a motion to disqualify SC Smith in the Florida case based on the same reasoning made by the AG Meese amicus brief in the immunity case.

At worst it was fortuitous timing that Judge Cannon in Florida conducted a hearing on the motion to disqualify SC Smith on June 21 — two weeks before the Supreme Court issued its decision on the immunity issue that included Justice Thomas’ Concurring Opinion on the same subject. But the Opinion does carefully consider the question raised by both sides in the battle of amici briefs in the immunity case, and the dispute as was then raised by the Trump Defense and SC Smith in the Florida case. Justice Thomas only goes so far as to say the issue should be more fully considered by the lower courts once the case is returned for further proceedings.

But he was writing for the benefit of Judge Cannon in Florida more than he was the Judges in the District of Columbia. For now, the issue in D.C. is resolved so long as the prior decisions involving the Mueller Special Counsel remain good law. But Judge Cannon is not bound by those decisions and she will be writing on a clean slate when she issues her ruling on the issue.

At least the slate was clean until Justice Thomas picked up his chalk.

It will be surprising Judge Cannon ignores the Concurring Opinion of a Supreme Court Justice and comes down with a ruling consistent with the prior decisions by the D.C. Court of Appeals. The arguments in favor of SC Smith’s appointment are far from clear. In his briefing SC Smith relies heavily on United States v. Nixon, which involved Special Counsel Leon Jaworski’s fight to obtain the Watergate Tapes. In an 8-0 decision, the Supreme Court sustained Jaworski’s authority under the “regulation” by which he was appointed to litigate against the Office of the President the question of whether Executive Privilege would prevail over a subpoena for records needed for purposes of due process in a pending criminal case. SC Smith — and the D.C. Circuit’s earlier decisions involving SC Mueller — point to this affirmation of authority of a Special Counsel in Nixon as a basis to sustain the legitimacy of Smith’s appointment to the “Office of Special Counsel” created by a DOJ regulation during the Clinton Administration.

The problem with that rationale is the Nixon case didn’t involve the legality of the regulation appointing Jaworski, it only involved the scope of Jaworski’s authority under the regulation. The Court noted that the regulation appointing Jaworski as Special Counsel — different than the regulations by which Smith was appointed — existed within the Department of Justice which was part of the Executive Branch that Nixon controlled as President. Nixon could not contest the legality of a regulation created by the branch of Government he controlled — that would have put him on both sides of the case. His option was to fire Jaworski and thereby terminate the regulation’s authorization. But he had already fired the first prosecutor, Archibald Cox, and firing Jaworski would have triggered impeachment just as certainly would have been the case if he defied the Supreme Court’s order that he turn over the tapes.

The Trump Defense is making a challenge to SC Smith that was not resolved by Nixon — whether the Attorney General can by regulation create an “Office” within DOJ, and then name Special Prosecutors equivalent to a U.S. Attorney to that “Office” without complying with the Appointments Clause. Trump’s Defense is arguing that Nixon doesn’t resolve this issue as it was never before the Court in that case — and Justice Thomas agrees.

So the “next shoe to drop” in Florida before getting to any of the substantive issues addressed by the Majority Opinion in the immunity case is that SC Smith might be “out” on the basis that the current DOJ regulation is invalid. That would be the Biden DOJ can no longer claim a “hands off” approach to the case, and AG Garland and POTUS Biden will their fingerprints on what happens next — not that there was ever much doubt about that.

Use of Evidence of Immune Acts To Secure the Indictments.

This issue has been bounced around with a couple of experienced federal criminal trial practitioners who I know to be competent – and we can’t come up with a clear answer on the question. But there are two DOJ Criminal Manual sections on grand jury practice — DOJ internal regulations — that touch on issues that are related to this problem.

There is no prohibition by law — regulation or otherwise — that prevents DOJ prosecutors from using certain kinds of evidence before the a grand jury that it would not be allowed to use in the Courtroom during a trial before a jury. The easiest example of this rule is “hearsay” evidence. Subject to certain exceptions, one witness cannot testify to what another person told the witness because that denies the defendant on trial the opportunity to cross-examine the person who made the statement but is not in court offering testimony. Allowing such testimony — if not subject to an exception — violates the Rules of Evidence.

But, by their very terms, the Rules of Evidence do not apply in all proceedings in a criminal case. Rule 1101(d) expressly states proceedings where the Rules do not apply, and that includes (d)(2) — Grand Jury proceedings.

Based on that, there is DOJ Regulation that expressly authorizes the use of “Hearsay” evidence before a grand jury:

BUT — that is not all that Rule 1101 states:

“Privileges” under the Rules of Evidence prohibit the use by the prosecution of materials that fall under any one of several types of privilege recognized by the Rules — “attorney-client”, “doctor-patient”, “clergy-penitent”, and “spousal privilege” are among the four most common.

These types of privileged information cannot be used at any “state[] of a case or proceeding.”

The issue of “Presidential Immunity” for official acts had never before been addressed by any Court prior to the indictments brought by SC Smith against FPOTUS Trump. Now that we have a resolution of the issue from the Supreme Court, the limits on prosecutorial authority with regard to how evidence of “official acts” can be used looks a whole lot like the kinds of limits imposed on the use of “privileged” communications. From the Chief Judge’s Opinion:

This passage sets up the process that must now take place at the trial court level, to determine what “conduct alleged in the indictment … should be categorized as official and which unofficial.” That question has been the focus of much of the post-decision commentary and debate over how the cases might proceed.

But that commentary skips over the problem of how the allegations came to be in the indictment in the first place — via the introduction of “evidence” to the grand jury. On that question, the Justice Manual states as follows:

Two immediate examples come to mind that are easily understood by all — including folks with a background in the culinary arts — a coerced confession and evidence unlawfully seized without a search warrant. The use of such evidence can form the basis of a motion to dismiss an indictment based on prosecutorial misconduct. It is impossible to know if the grand jury would have returned the indictment if it had not heard the evidence that it should not have heard — such as a coerced confession.

Read more (It is behind a paywall for Ship however that money goes to the 20+ J6 Defendants he is representing, well worth the few dollars)

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Chief Justice Roberts majority opinion in Trump v. U.S. is a logical, legal, and historical tour de force, which is one reason I’ve been parsing out my key observations about it, one by one.

The latest observation: The Chief sets out that the government (i.e., Jack Smith and his appellate lawyer, Michael Dreeben) conceded two key points that doom their position:

(1) Core constitutional powers of the President can’t be regulated at all by Congress (slip op. at 34); and

(2) At least some of the conduct alleged in the indictment involves official actions by President Trump (slip op. at 35).

So that might lead a rational person — and I hope you are one — to ask the question, so how did Jack Smith think he could get ever possibly get away with such an indictment? The two concessions don’t add up and should have led to either no indictment of Trump or at least a slimmer indictment.

Then the Chief delivers the coup de grâce: The answer to the dilemma is that Jack Smith wanted Trump to be limited to post-trial, as-applied challenges to the constitutionality of the indictment. Id.

And now, I ask you as a rational person, to ask the next question, which the Chief does not answer, but which is nevertheless as plain as day — Why would Jack Smith want to proceed that way instead of resolving all immunity questions first after making two huge concessions marching him toward recognizing some span for immunity?

Because it would infect the political world of the election and also poison any conceivable D.C. jury inundated with headlines and non-stop CNN, MSNBC TV coverage, as well as WaPo and NYT coverage. Post-trial review by Trump would occur only after the damage had already been inflicted on Trump.

Q.E.D.: Jack Smith was called out and exposed for his improper anti-Trump and anti-separation of powers enterprise in the Supreme Court’s immunity decision. And the Republic is better for it! Jack Smith’s enterprise was nakedly political in nature.


Canon knows she can’t get away with dismissing Trump’s indictments. She would be removed from the cases herself, as she should have been already. That’s why she’s only employing delaying tactics.

Probably right. She can’t depend on the corrupt DoJ protecting her from leftist assassination attempts just because she did the correct and obvious act of throwing this bullshit out.

Completely wrong skipper, just leftist talking points…

Greggie, will you stop posting your silly comments here if Canon dismisses Trump’s indictments based upon Justice Thomas’s comments?

Sorry Rosebud your sailing into the Iceberg fields and your going to collide with one and sink

With the MSM bottom feeders and the UN should be shut down and the WEF against the flower lightball snowflake.

CNN/NYT’s the Bottom Feeders run both

Your a like Cannon the way your always shooting your mouth off

Just as in Bragg’s and James’ cases, convictions and punishment is irrelevant. The goal was propaganda. That’s why they charge the same charges over and over and over for nothing but scoreboarding. The entire enterprise is nothing but theater and propaganda.

smith was unconstitutionally appointed. Judge Cannon should dismiss the case once she has shown the criminal conspiracy to engage in election interference.