Special Counsel Jack Smith launched a new superseding indictment against former President Donald Trump on Tuesday, August 27. Filed in federal court in DC, the latest indictment is another bite at the apple to put Trump in federal prison because of the January 6 protests, with a novel application of the criminal law. Trump’s big win at the Supreme Court against his personal prosecutor appears not to have diminished the man’s zeal.
Trump took to his Truth Social, decrying the Biden administration’s renewed prosecution with a flurry of posts. He said, “In an effort to resurrect a ‘dead’ Witch Hunt in Washington, D.C., in an act of desperation, and in order to save face, the illegally appointed ‘Special Counsel’ Deranged Jack Smith, has brought a ridiculous new Indictment against me, which has all the problems of the old indictment, and should be dismissed IMMEDIATELY.”
Smith Takes a Second Bite of the Apple
Jack Smith filed the charges, presumptively approved by Attorney General Garland, but what about President Biden? Trump added, “It is DOJ policy that the Department of Justice should not take any action that will influence an election within 60 days of that election – but they just have taken such action.” Unlike past efforts, Trump won’t have to fight to delay a trial until after the November presidential elections. It’s too late for that.
The indictment says Trump is guilty of three conspiracies, including election fraud, obstruction of Congress, and conspiracy against the right to vote. Smith writes:
“Each of these conspiracies – which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud – targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (‘the federal government function’).”
The decision to bring a case is political and at the discretion of prosecutors. All the more reason why the DOJ might want to avoid the appearance of a nakedly partisan prosecution. Not so for the Biden/Garland Department of Justice, which did not see fit to issue a press release, much less a press conference, to inform the public why these charges were appropriate and necessary a few short months before the presidential election. Given the state of things, one wonders, does President Biden know about the new charges? What about Kamala Harris? Was she consulted? Sadly, the president and the Democrat nominee are cloistered from such queries by a complicit big-box media.
Appeals Ongoing
Smith made news on Monday, August 26, when he appealed the dismissal of charges against Trump for mishandling classified documents. US District Judge Aileen M. Cannon – a Trump appointee – ruled in July that special counsel Jack Smith was improperly appointed and could not legally bring such charges. Smith is not a US Attorney, nominated by the president and confirmed by the Senate.
The 11th Circuit Court of Appeals, which covers Florida, will review Cannon's dismissal. If it upholds the ruling and the reasons for it, we can expect Smith’s appointment to reach the Supreme Court. The issue was discussed briefly during the oral argument in U.S. v. Trump, and Justice Clarence Thomas thought it was important enough to write about. He issued a concurring opinion which said:
“I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States…
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”
Trump would presumably fire Smith on his first day in office, should he win the election, and he could also pardon himself for any possible crime he may have allegedly committed on Jan. 6, 2021.
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