Jack Smith plays his hand

In this election year, with four criminal cases pending against him, Donald Trump’s lawyers have implemented extensive delaying tactics for legal and political reasons. Meanwhile, special counsel Jack Smith is pulling the cards he’s been dealt, and it looks like his latest legal attempt could sidestep the Supreme Court’s transformative immunity ruling. Delay works in football, but in this legal/political battle it may not work.

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 instead of passing it is an effective and valid strategy that takes advantage of whether the clock is running or stopped at the end of the game. The clock continues to run after a successful or unsuccessful game in progress. It stops after a failed pass play.

But as a matter of law, most ethics codes provide that the strategy of unreasonably delaying a trial clearly constitutes an ethical violation. In addition, both federal law and many state laws provide parameters to ensure that criminal proceedings are conducted expeditiously.

Trump’s delays satisfy Smith’s request for immunity provisions

Trump’s lawyers implemented a delay strategy in all four criminal cases involving Trump. These efforts were successful. Trump has not yet been brought to trial in any of the criminal cases pending against him, with the exception of the hush money case in New York; He was convicted there and is due to be sentenced on November 26th.

In a 165-page motion filed on October 2, 2024 by Smith and the Justice Department in the January 6 case against Trump, the DOJ alleges that in his attempt to overturn the 2020 results, Trump allegedly “on Crime resorted to” presidential election. The DOJ claims that Trump is not entitled to immunity because of, among other things, the fake voter conspiracy.

The request is intended to comply with the Supreme Court’s instruction that the trial court decide on the immunity issue before proceeding to a trial. The Supreme Court ordered the trial court to consider whether her immunity ruling would prevent the trial.

The trial judge, U.S. District Judge Tanya Chutkan, must decide what evidence presented by the DOJ is admissible before the actual trial begins.

Trump response deadline extended to November 7th

Judge Chutkan gave Trump until November 7 (two days after the election) to file his response brief and also gave him the opportunity to re-file her motion to dismiss. Her order could run 180 pages, which represents the same concession she made to the DOJ. The DOJ has until November 21 to file its reply brief and a combined reply brief in response to the motion to dismiss. Trump has until December 10 to submit a response.

The DOJ also submitted 1,900 pages of supporting evidence in the form of witness statements or depositions and documents as appendices. Judge Chutkan redacted this evidence and it was published on October 18.

How long it will take for Judge Chutkan to make her decision is difficult to estimate, but an appeal will undoubtedly be lodged.

It should be noted that a significant portion of Smith’s proposal concerns the bogus voter conspiracy.

For example, on page 47, Subsection D is entitled “Defendant organized and induced its voters to submit fraudulent ballots, thereby creating the false appearance that states had submitted competing slates of electors.” This occurred in the seven contested states designated as “target states.” be referred to.

The motion mentions the memoranda written by Trump and Republican private attorneys Kenneth Chesebro and John Eastman. However, their names and the names of all witnesses, including those described as co-conspirators, have been redacted.

The mock election program played out differently in each of the seven contested states. In Pennsylvania, several of the proposed Republican electors declined to participate. They claimed this would violate state law. Trump was very upset about this, which is just one of several signs that he was aware of and supported the sham election scheme.

Will the delaying tactics be legally successful?

If Trump wins the 2024 election, he will lead the Justice Department or choose someone as his attorney general to end the case. He could also pardon himself as president, although no president has ever done so. Given the makeup of the current Supreme Court, if challenged, the court will likely uphold the pardon.

If Trump loses the election, the case will likely continue. Anyone who reads Smith’s motion realizes how compelling the arguments are and how likely it is that Trump will be convicted or take a deal, whichever is more likely.

The motion could bypass the SCOTUS immunity ruling by relying heavily on Judge Amy Coney Barrett’s reasoning in her concurring immunity opinion, and could even get a fifth justice to support it if it is returned to the court. She explained that as president, Trump has no official role in selecting and voting for voters in various states because the process in each state is governed by state law. Even if there were some official capacity, Judge Barrett continues: “[W]However, Congress plays only a limited role [in the appointment of Presidential electors]the President has none.” Therefore, any presumption of immunity would have no impact on his conviction.

Will the delay have political success?

This will be decided in the elections on November 5th. However, there is no reason to believe that Trump will act differently after this election than he did after the 2020 election, but will not be able to use presidential powers to prevent Kamala Harris from taking office.

The DOJ has presented concrete evidence that Trump is guilty of the crimes he is accused of. Will the electorate be influenced by the details of this proposal? Trump’s reaction to the request shows that he is deeply concerned about its contents. That should be him. Voters will ultimately decide Trump’s fate.