The Washington Post is reporting that Special Counsel Jack Smith may try to convict former president Donald Trump all the way through the election and up to 11:59 am on January 20th. After the oath, the Justice Department has long maintained that it will not prosecute a sitting president.
There is also a long-standing policy of the Justice Department to abstain from criminal proceedings before an election to avoid the appearance of trying to influence the outcome.
Smith has signaled that he will discard that policy and that he is prepared to try Trump not only up to the election but through the election.
He is now reportedly willing to try Trump up to January 20th.
Smith has made trying Trump before the election the overriding priority in his two cases against the former president. He failed repeatedly to force a shorter schedule on appeal before the Supreme Court. His arguments were revealing. He suggested that the public should have a possible conviction before they cast their votes. It flipped the DOJ policy on its head in openly seeking to influence the election.
The Supreme Court was not persuaded, though Smith did succeed in effectively cutting the appellate process a bit shorter. He then lost in spectacular fashion before the Court on presidential immunity.
According to the Post, he is not giving up the ghost and is now committed to a trial running up to Inauguration Day: “Current officials, speaking on the condition of anonymity, expressed … that if Trump wins the election, the clock on the two federal cases against him would keep ticking until Jan. 20, when he would be sworn in as the 47th president.”
Even with Smith’s continued push to try Trump at all costs before the Inauguration, it could be a challenge. There is a 30-day period before the Supreme Court case is effectively returned to district court.
Judge Tanya Chutkan has been highly favorable for Smith and highly motivated in seeking a trial before the election. That led to problems highlighted in the recent opinion. Chutkan was so motivated that she failed to create an adequate record on these issues. That record will now have to be established.
If Chutkan rules as she did earlier, she is expected to be hostile to Trump’s claims on his conduct falling within official functions. However, she will need to make the record and her decision could again be appealed. The Court left clear guidelines that will make it difficult for Chutkan to, again, dismiss such claims.
Moreover, the pre-trial motions were stopped with the latest appeal. They must now be addressed.
Finally, she pledged to give the Trump team over 80 days for preparation after the appeal, which will be added to the 30 days, the period for the remand record, and the pre-trial motions.
There is also the need for the court and Smith to deal with the Fischer decision limiting the use of the obstruction charges — impacting two of the four counts against Trump. As I have previously written, Smith has various options but could trigger a new reversal on appeal if he follows his signature inclination to resist legal limits.
In other words, Smith’s appetite for a trial before the Inauguration may exceed his ability to force that expedited schedule.
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