Jack Smith's Immunity Brief: What to Expect

Fair warning - you're probably not going to like my answer - but I'm gonna give it to you straight.

A lot of folks were super disappointed when we learned that we wouldn’t be getting a “mini-trial” with dramatic testimony and evidence in the trump coup case before the election. Andy McCabe and I warned against that unrealistic expectation on the Jack podcast weeks ago. We were not surprised to learn there’d be no mini-trial.

Well, it seems to be happening again in the lead up to deadline for Special Counsel to file its immunity brief September 26th. I’m seeing pundits positing that we’re about to get a huge trove of never-before seen information and evidence including grand jury testimony and FBI 302s.

I think that’s unlikely, and I’ll tell you why.

During a hearing before Judge Chutkan on immunity that took place September 5th, a prosecutor on Jack Smith’s team named Windom told the Judge that he expects their immunity brief to be “comprehensive”, and it will include facts both inside and outside the indictment, a “substantial number of exhibits” including Grand Jury transcripts, interview transcripts, and FBI 302s. So I can see where some might get the idea we’re about to hit the motherlode.

However, when Judge Chutkan asked “How much of that information do you anticipate is going to be under seal?” Windom - answering for the government, said “It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.” He added “We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.”

So what will we get? We get to learn Jack Smith's reasoning behind why Donald’s conduct is not subject to immunity - a lot of which was argued in Smith’s immunity briefs ahead of the Supreme Court’s ruling, and most of which is heavily hinted at in the superseding indictment. Provided it’s not filed under seal. It might not sound as exciting as witness testimony, but I personally can’t wait to read it and cover it here.

Here are some of the explanations I expect to see based on my detailed redline of the superseding indictment (link)

1. The charged conduct is not subject to immunity because Donald Trump was acting in his capacity as a candidate for president.

   1. Trump himself declared he was acting in his capacity as a candidate for office and not as president when he intervened in the Texas lawsuit. This came up in the Blassingame ruling from the DC Circuit - a civil case brought against Trump for his actions on January 6th. Heres what the court ruled: President Trump himself recognized that he engaged in his campaign to win re-election—including his post-election efforts to alter the declared results in his favor—in his personal capacity as presidential candidate, not in his official capacity as sitting President. That is evident in his effort to intervene in the Supreme Court’s consideration of a post-election lawsuit challenging the administration of the election in various battleground states. He expressly filed his motion in the Supreme Court “in his personal capacity as candidate for reelection to the office of President” rather than in his official capacity as sitting President. Trump Mot. to Intervene 3, Texas v. Pennsylvania. And he grounded his claimed right to intervene in the case in his “unique and substantial personal interests as a candidate for re-election to the Office of President” rather than in any official interest in exercising the office’s duties. I expect to see a citation of this in Jack Smith’s brief.

   2. I also expect to see this citation from the same case to make the argument that Trump was acting as a private citizen running for office: The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office. So, when a sitting President running for a second term attends a private fundraiser for his re-election effort, hires (or fires) his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder— no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.

   3. Jack Smith wrote in his immunity brief to the Supreme Court ahead of their ruling: “…the private conduct that the indictment alleges is sufficient to support the charges. Thus, even if liability could not be premised on official acts, the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision. Petitioner could seek appellate review of those rulings, if necessary, following final judgment.”

   4. Jack Smith may also bring up the fact that because Trump raised first amendment concerns in this case, that also proves he was acting in his capacity as a private citizen. Special Counsel made that argument in his SCOTUS immunity brief as well: “[Trump] confirmed that he acted in a private capacity by seeking First Amendment protection for his false speech and moving to dismiss the entire indictment on that basis. see Manhattan Community Access Corp. v. Halleck (“The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.”); Garcetti v. Ceballos, (employee speech for the government has no First Amendment protection). The district court correctly held that petitioner’s false speech in furtherance of the charged conspiracies is not constitutionally protected, but petitioner’s assertion of private First Amendment rights speaks volumes about the private character of the charged offenses.”

2. Discussions between Pence and Trump were not between a president and vice president, they were between a candidate for president and his running mate, or a candidate for president and the president of the senate. Therefore, these discussions aren’t even presumed immune. But if the court determines they have presumptive immunity, the argument to defeat that presumption remains the same: Donald was acting in his capacity as a private citizen running for president while attempting to enlist his running mate in his ministerial role as president of the senate. The DC circuit confirmed Pence was acting in his role as President of the Senate when they granted him Speech or Debate privilege over communications with his General Counsel and the Senate Parliamentarian.

3. All the remaining co-conspirators are private attorneys or members of the campaign, so no immunity attaches. A candidate for president conspired with private attorneys and his campaign staff to retain power.

4. The speech at the Ellipse on January 6th was a campaign speech delivered by a candidate, not a speech delivered by trump in his capacity as president. The rally was privately funded and privately organized. 

5. Providing election oversight is not the job of the president or anyone in the executive branch of the federal government. Elections are administered by states. The below comes from Jude Pryor’s ruling in the 11th Circuit when Mark Meadows wanted to have his case moved to federal court. We could see this language, but also the language cited from Sandlin and Roudebush:

   1. Meadows asserts that the White House chief of staff has duties related to the supervision of state elections and campaign-related “political” activity. In particular, he maintains that broad authority and few limitations can be found in the Elections Clause, the Take Care Clause, various election statutes, and the Hatch Act. But the district court concluded, and we agree, that the federal executive has limited authority to superintend the states’ administration of elections—neither the Constitution, nor statutory law, nor precedent prescribe any role for the White House chief of staff. And even if some authority supported a role for the chief of staff in supervising states’ administration of elections, that role does not include influencing which candidate prevails. After all, “[t]he Office of the President has no preference for who occupies it.”

   2. Meadows concedes that the “Constitution does not spell out a role for the President in the operation of state voting procedures in federal elections.” The Constitution empowers only the states and Congress to “regulate the conduct of [federal] elections.” Roudebush v. Hartke.

   3. Nor does federal statutory law provide the White House chief of staff any role in the supervision of state elections. For example, the Electoral Count Act, Pub. L. No. 45-90, 24 Stat. 373 (Feb. 3, 1887), assigns duties to congressional officials—the Vice President in his role as presiding officer of the Senate, the Speaker of the House, senators, and representatives—but not to the President or his chief of staff. Cf. United States v. Sandlin

   4. We are aware of no authority suggesting that the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally authorized act.

6. Certain tweets sent out by the president are not subject to immunity because they were sent in his private capacity as a candidate for office 

   1. Even if the court considers all tweets subject to the presumption of immunity, it still fails because sending a mob to assassinate the VP and disrupt an official proceeding cannot be considered official acts

7. All of the evidence the government will put forth to prove trump knew he lost the election now only comes from private attorneys and campaign folks

   1. We COULD see mention of those two reports the trump campaign spent $1.5M on from research firms he hired to find voter fraud. Both reports showed there was no voter fraud. I suspect the reports themselves would be filed as an exhibit under seal. The reports aren’t mentioned in the superseding indictment.

8. The superseding indictment added a lot of information about the “RNC Chairwoman”. I could see Jack Smith using her presence to bolster the idea that Trump called state election officials to pressure them in his capacity as a candidate for office.

9. DoJ will argue that trump used his campaign to spread voter fraud lies - as opposed to trump’s argument that he was doing that as president. Again, the first amendment argument could be used here: Donald argued his speech was protected by the First Amendment - and the First Amendment protects private citizens, not the president.

I anticipate that all supporting evidence will be filed in exhibits under seal pursuant to the protective order Windom mentioned. We may soon see motions from the government for leave to file them under seal. Or not. Maybe I’m wrong and we’ll get a bonanza tranche of evidentiary awesomeness - but given the circumstances, I’m not so sure.

We will know by September 26th.

~AG