Day: January 3, 2024

As Special Counsel Jack Smith makes the case that former President Donald Trump shouldn’t have vast immunity to commit crimes, Smith has compiled a very curious list of theoretical misdeeds that seem to telegraph potential bombshells at his upcoming D.C. trial.

Accepting a bribe, ordering an FBI director to fake evidence against a political foe, ordering the military to murder critics, and even selling nuclear secrets to a foreign enemy—these are the particular and peculiar crimes that prosecutors say Trump could get away with if he succeeds in arguing that presidential immunity gives him king-like powers to do as he pleases from the White House.

Again, theoretically, of course.

“In each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy,” prosecutors wrote to appellate judges on Saturday.

Former President and Republican presidential candidate Donald Trump speaks during a “Commit to Caucus” event for his supporters in Coralville, Iowa.

They used nearly identical phrasing in a court filing to U.S. District Judge Tanya Chutkan in October.

The billionaire and the special prosecutor are currently battling ahead of a criminal trial in the nation’s capital, tentatively scheduled to begin in March on the eve of Super Tuesday. Trump is desperately trying to delay it, with his lawyers openly complaining that the trial could interrupt his presidential campaign at the height of the state primary elections. Meanwhile, Smith wants to start it as soon as possible, something that would allow GOP voters choosing their top Republican candidate to see federal prosecutors finally lay out their evidence that Trump broke the law by trying to overturn the 2020 election.

But D.C. appellate judges must first consider key issues, including whether Trump can effectively render himself immune from criminal prosecution by justifying everything he did as an official presidential act.

That’s what has Smith’s prosecutors warning that Trump’s delusions of invulnerability pose a danger to the fate of the republic.

“The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the executive branch, or a statement on a matter of public concern,” they wrote on Saturday.

Over the weekend, the usual legal commentators who weigh in on MAGA madness zeroed in on Smith’s bizarre examples of specific scandals.

“Interesting choice of hypotheticals…” tweeted the lawyer George Conway, whose ex-wife Kellyanne Conway long served as a Trump political adviser.

“It took quite an imagination,” he later added, sarcastically.

Smith’s prosecution team has been incredibly tight-lipped in the run-up to trial, forcing journalists to rely almost entirely on the steady stream of court documents in the case—but leaving the curious crowd of onlookers reading the tea leaves and trying to make sense of hints and innuendo. Some found it humorous when the D.C. indictment charging the 45th American president ran 45 pages. This time around, the peanut gallery swears Smith is telegraphing his case.

Former federal prosecutor Renato Mariotti, who co-hosts the It’s Complicated legal podcast, drew his followers’ attention to Smith’s warning that blanket immunity would spare any president “who instructs the FBI Director to plant incriminating evidence on a political enemy [or] a president who orders the National Guard to murder his most prominent critics.”

Trump’s attorneys have previously shrugged off any notion that these theoretical crimes are rooted in reality. The last time prosecutors floated these ideas, defense lawyers Todd Blanche and John F. Lauro ripped into Smith’s team for even venturing into that zone.

“Ignoring actual lessons from history, the government provides a list of lurid hypotheticals that have never happened—including treason and murder,” they wrote in a Oct. 26 court filing.

They also tried to make a legal distinction between Smith’s examples and whatever Trump actually did, doubling down on their theory that the billionaire was acting in his official capacity when he told Georgia’s top elections official to “find” 11,780 non-existent votes, attempted to employ fake electors, and tried to pressure his vice president to interrupt certification of the election results.

But in distinguishing between Smith’s examples and Trump’s actions, defense lawyers also cornered themselves—making clear that if Trump actually did any of Smith’s “lurid” hypotheticals, there’s no way his official position would save him.

“Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here,” they wrote.

The fate of the trial is now in the hands of Judges J. Michelle Childs, Karen LeCraft Henderson, and Florence Y. Pan. The judges haven’t heard oral arguments yet, but they gave some indication on Tuesday that they plan to explore whether they might just kick the case right back to the trial judge—or force Smith off the case entirely.

In an extremely brief order on Tuesday, the judges advised that “counsel be prepared to address” what they called “discrete issues” raised in court filings by third parties. So far, that only includes an argument made by the government watchdog nonprofit American Oversight that Trump’s supposed immunity isn’t even an appellate issue before the trial takes place—and an argument by conservative legal scholars that claims “no statute creates a Special Counsel with the jurisdiction and authority Smith wields.”

Smith’s prosecutors and Trump’s defense team are scheduled to argue in court next Tuesday.

Donald Trump might be praising the Supreme Court’s refusal of special counsel Jack Smith’s plea for an expedited hearing on the former president’s immunity claim, but he might be celebrating too soon.

Watergate prosecutor Nick Ackerman warned Wednesday that what Trump considers good news is going to blow up in his face.

“Not so fast!” he wrote in the Atlanta Journal Constitution. “My New Year’s prediction: The Supreme Court will refuse to hear Mr. Trump’s inevitable appeal from the D.C. Circuit U.S. Court of Appeals finding that presidential immunity does not apply to Mr. Trump’s alleged criminal acts arising out of the Jan. 6th insurrection. The criminal prosecution against Mr. Trump will proceed to trial in March.”

Trump is claiming that he’s immune from criminal prosecution for actions he took on January 6 because he was acting in his official capacity as president. In an effort to brush the claim aside and get quickly to trial, Smith asked that he be able to sidestep the lower Court of Appeals hearing of his case and go straight to the Supreme Court.

The court refused — meaning the immunity argument will now be heard by the appeals court and then likely end up at the Supreme Court, which experts have said will likely delay Smith’s trial that’s currently set for March — a slowdown that feeds into Trump’s tactic of delay.

But Ackerman, who was an assistant special prosecutor on the Watergate case, suggests that will not be the case.

“Ultimately, Mr. Trump’s efforts to manipulate the legal system and postpone his criminal trial are doomed to fail,” he wrote.

Trump has already tested the immunity claim before an appeals court. On Dec. 1, the D.C. Circuit heard arguments that he should be immune from civil litigation brought against him by Capitol police officers and members of Congress.

It was roundly rejected, with the court finding the actions arose from campaigning, and were “not an official act of the office.”

In Atlanta, another court of appeals unanimously rejected a similar claim by Trump’s former chief of staff Mark Meadows, who said he should be immune from charges involving attempts to overturn the 2020 election brought by District Attorney Fani Willis.

“Whatever the precise contours of Meadows’s official authority, that authority did not extend to an alleged conspiracy to overturn valid election results,” the court found.

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“The Supreme Court justices were undoubtedly aware of [the Atlanta] decision when they denied Mr. Smith’s motion to hear the appeal,” wrote Ackerman. “[It] clearly stands for the proposition that participating in a conspiracy to overturn the peaceful transfer of power is not within the scope of executive authority. As such, the crimes Mr. Trump is alleged to have committed in the criminal case are not excused by presidential immunity.”

Ackerman concluded, “The Supreme Court will be fully justified in not accepting an appeal from Mr. Trump on his all but certain loss in the D.C. Circuit expected shortly after next week’s scheduled Jan. 9th oral argument. Presidential immunity is simply not a controversy the Supreme Court needs or in which it should want to partake, thereby permitting the criminal trial of Mr. Trump to proceed as scheduled without the indeterminable delay he hopes to achieve.”

WASHINGTON (AP) — Two well-connected political consultants provided false information about lobbying work on behalf of a wealthy Persian Gulf country during the Trump administration, according to Justice Department court records unsealed Tuesday.

Charging documents filed in federal court in Washington allege that Barry P. Bennett, an adviser to Donald Trump’s 2016 presidential campaign, spearheaded a covert and lucrative lobbying campaign aimed at advancing the interests of a foreign country, including by denigrating a rival nation.

The country for whom the work was done is not named in the documents but it matches the description of Qatar, which in 2017 paid Bennett’s company $2.1 million for lobbying work, and was identified in a 2020 Justice Department subpoena that was earlier obtained by The Associated Press and that sought records related to Bennett’s foreign lobbying.

Federal prosecutors filed two criminal counts against Bennett in a charging document known as an information, which is typically filed only with a defendant’s consent and generally signals that the parties have reached a resolution. Prosecutors said the case will be dismissed after he complies with the terms of a deferred prosecution agreement, including the payment of a $100,000 fine.

The Justice Department also reached a similar agreement with Douglas Watts, a New Jersey political consultant who prosecutors say worked alongside Bennett and failed to register under the Foreign Agents Registration Act.

The law, enacted in 1938 to unmask Nazi propaganda in the United States, requires people to disclose to the Justice Department when they advocate, lobby or perform public relations work in the U.S. on behalf of a foreign government or political entity.

A lawyer for Bennett did not immediately return messages sent to his law firm. Justin Dillon, a lawyer for Watts, declined to comment Tuesday evening. An email to the Qatari embassy was not immediately returned.

According to the Justice Department, Bennett signed a contract in 2017 for his company, Avenue Strategies, to perform lobbying work on behalf of the Qatari embassy. He also registered with the Justice Department that year to lobby for the embassy.

But as part of that strategy, prosecutors said he also covertly operated another company called Yemen Crisis Watch that operated a public relations campaign to denigrate one of Qatar’s unnamed rivals — both Saudi Arabia and the United Arab Emirates were engaged in military operations in Yemen that critics say contributed to a humanitarian crisis — and improve Qatar’s standing with the U.S. government.

That effort included lobbying Congress and Trump, as well as a social media campaign, publishing opinion articles in newspapers and producing a television documentary, according to prosecutors. Yemen Crisis Watch urged the public to contact their lawmakers and urge them to “cease supporting” the intervention in Yemen by Qatar’s unnamed rival, prosecutors said.

Robert Schuller, a prominent televangelist, and former Kansas Gov. Jeff Colyer both helped Yemen Crisis Watch’s efforts, according to earlier reporting from the Wall Street Journal and the Topeka Capital-Journal. Neither man has been charged with any wrongdoing and messages sent to them were not immediately returned.

Prosecutors say Bennett’s consulting company did not disclose in its FARA filings the creation of Yemen Crisis Watch, and that Watts made false statements during interviews with the FBI about his knowledge of the company’s formation and its activities.

The case is among severalprobes by federal law enforcement officials related to Qatar’s aggressive influence campaign during the Trump administration, when it was the target of a blockade by Saudi Arabia and other neighbors.

Suderman reported from Richmond, Virginia.