Jack Smith plays his hand

In this election year, with four criminal cases pending against him, Donald Trump’s lawyers have implemented full-scale delaying tactics for both legal and political reasons. Special counsel Jack Smith, meanwhile, is taking the cards he was dealt and it appears his latest legal effort could bypass the Supreme Court’s transformational immunity ruling. Delay works in football, but it may not succeed in this legal/political scrimmage. 

At the end of a close football game, it is quite common for the team with the higher score to eat up the clock. Running the ball rather than passing the ball is an effective and permissible strategy that takes advantage of whether the clock runs or stops at the end of the play. The clock will continue to run after a successful or unsuccessful running play. It stops after a failed passing play.

But in law, most legal codes of ethics stipulate that the strategy of unreasonably delaying a trial is clearly an ethical violation. Moreover, both the federal code and many state codes provide parameters for ensuring that criminal trials will be speedy trials. 

Trump’s Delays Meet Smith Motion for Immunity Determinations

Trump’s lawyers instituted a strategy of delay in all four criminal cases involving Trump. These efforts have been successful. Trump has not gone yet to trial in any of the pending criminal cases against him, except the New York hush money case; he was convicted there and faces sentencing Nov. 26. 

In a 165-page motion filed on Oct. 2, 2024, by Smith and the Department of Justice in the Jan. 6 case against Trump, the DOJ contends that Trump allegedly “resorted to crimes” in his effort to overturn the results of the 2020 presidential election. DOJ maintains that Trump is not entitled to immunity for, among other crimes, the fake elector conspiracy.

The motion is designed to conform to the Supreme Court’s directive to the trial court to decide the immunity issue prior to proceeding to a trial. The Supreme Court ordered the trial court to consider whether their ruling on immunity will prevent the trial.

The trial judge, U.S. District Judge Tanya Chutkan, has to decide before the actual trial commences what evidence proffered by the DOJ will be admissible.

Trump Reply Deadline Extended Until Nov. 7

Judge Chutkan gave Trump an extension until November 7 (two days after the election) to file his responsive brief, and she also granted to him the option of reasserting their motion to dismiss. Their brief may be 180 pages, which is the same concession she gave to the DOJ. The DOJ has until Nov. 21 to file its reply brief and a combined reply brief in response to the motion to dismiss. Trump has until Dec.10 to file a reply brief. 

DOJ has also filed 1,900 pages of supporting evidence in the form of witness statements or testimony and documents as an appendix. Judge Chutkan redacted this evidence, and it was released on Oct. 18.

It is difficult to estimate how long it will take Judge Chutkan to make her decision, but it will undoubtedly be appealed.

It should be noted that a substantial portion of Smith’s motion concerns the fake elector conspiracy. 

As an example, Subsection D on Page 47 is entitled “The Defendant Organized and Caused His Electors to Submit Fraudulent Certificates Creating the False Appearance That States Submitted Competing Electoral Slates.” This occurred in the seven battleground states that are referred to as “targeted states.”

The motion mentions the memoranda written by Trump and GOP private attorneys Kenneth Chesebro and John Eastman. But their names and the names of all witnesses, including those referred to as co-conspirators, were redacted.

The fake elector scheme played out differently in each of the seven battleground states. In Pennsylvania, several of the proposed Republican electors refused to participate. They contended that doing so would violate state law. Trump was very upset about this, which is just one of several indicators that he was aware of and supported the fake elector scheme. 

Will Delay Tactics Succeed Legally?

If Trump wins the 2024 election, he will direct the DOJ or select as his attorney general someone to terminate the case. Also, as president, he could pardon himself, though no president has ever done so. Given the composition of the present Supreme Court, if this was challenged, the Court is likely to uphold the pardon.

If Trump loses the election, the case is likely to continue. Anyone who reads Smith’s motion realizes how strong the case is, and how likely it is that Trump will be convicted or enter into a plea deal, which is more likely.

The motion could bypass the SCOTUS immunity ruling by leaning heavily on the reasoning of Justice Amy Coney Barrett in her concurring immunity opinion, and could even get a fifth justice to support it if it goes back to the Court. She stated that Trump, as the President, has no official role in the selection of and voting by the electors in the various states because the process is subject to state law in each state. Even if there were some official capacity, Justice Barrett continues that “[W]hile Congress has a limited role [in the appointment of Presidential electors], the President has none.” Therefore, any presumption of immunity would not affect his being found guilty.

Will Delay Succeed Politically?

This will be determined at the polls on Nov. 5. There is no reason, however, to assume that Trump will act any differently after this election than he did after the 2020 election, but he will not be able to use the powers of the presidency to prevent Kamala Harris from taking office.

DOJ has provided concrete evidence establishing that Trump is guilty of the crimes for which he is charged. Will the electorate be influenced by the details in this motion? Trump’s response to the motion indicates that he is deeply concerned about its contents. He should be. The voters will ultimately decide Trump’s fate.