July 2024 might better be remembered as the month in American politics that felt like a year: Former President Donald Trump avoided an assassination attempt and named his vice presidential nominee in a series of days; his then-political rival withdrew from the 2024 race and endorsed his own vice president.
But focusing only on politics ignores a pair of massive developments in special counsel Jack Smith’s two federal criminal cases against Trump, which are expected to end if Trump is re-elected.
Still, while both cases have hit serious roadblocks, neither is over by a long shot. Here’s where the federal cases stand:
The federal classified documents case
In Florida, Judge Aileen Cannon ruled this month that Attorney General Merrick Garland’s November 2022 appointment of Smith as special counsel and the Justice Department’s funding of the special counsel office’s expenses were inconsistent with not one, but two provisions of Article II of the Constitution: the so-called Appointments and Appropriations Clauses. Therefore, Cannon held that the case could not continue, regardless of whether Trump’s other objections were valid.
Smith’s office has made clear how and where it plans to forge ahead. Specifically, with the blessing of the DOJ, the special counsel filed an appeal of Cannon’s July 15 order with the U.S. Court of Appeals for the 11th Circuit, which oversees federal trial courts in Florida, as well as Alabama and Georgia.
Some legal experts, including former federal prosecutor and MSNBC legal analyst Mary McCord, had argued that having the DOJ reindict the case would be the best and most expeditious way to get that case back on track. But according to former U.S. attorney and MSNBC legal analyst Joyce Vance, “If the special counsel pursues the appeal, the DOJ is extremely unlikely to reindict during its pendency, among other reasons because it would likely moot the appeal.”
Note also that to date, Smith’s office has only filed a notice of appeal, which is like a declaration of its intent. The actual brief is not due until Aug. 27. Currently, Trump’s opposition to the appeal is due 30 days thereafter, and the special counsel can submit a reply 21 days after that. With briefing ending in mid-October and no oral argument date set, it is unlikely the 11th Circuit would issue an opinion before the election — and to date, the special counsel’s office has not asked the court to expedite briefing and consideration of the appeal.
Yet in 2022, Smith requested — and got — an expedited briefing when he successfully appealed Cannon’s appointment of a special master to review materials seized at Mar-a-Lago in August of that year. The time frame for Smith’s appeal could be equally critical here.
The bottom line: The Mar-a-Lago documents case is over for now — but it could come back with a vengeance after the 11th Circuit rules, assuming Trump is not back in the Oval Office by then.
The federal election interference case
While the classified documents case awaits appellate briefing, the federal election interference case pending in Washington, D.C., before Judge Tanya Chutkan has yet to be restarted after the Supreme Court’s broad immunity decision in Trump v. United States. But that case is widely expected to be curtailed.
For example, the majority opinion holds unambiguously that Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” Therefore, going forward, legal experts expect neither the charges themselves nor the evidence can refer to Trump’s conversations with then-Attorney General Bill Barr; his acting successor, Jeffrey Rosen, and Rosen’s deputy, Rich Donoghue; and even Trump’s alleged co-conspirator, then-acting Assistant Attorney General Jeffrey Bossert Clark.
Yet the Supreme Court was equally clear that sorting through when immunity applies to the remainder of the indictment, at least “in the first instance,” is a job for Chutkan. Under the Supreme Court’s ruling, she must:
- Determine “with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding … would pose any dangers of intrusion on the authority and functions of the Executive Branch”;
- Conduct a “close” and “fact-specific” “analysis of the indictment’s extensive and interrelated allegations” about Trump’s interactions “with a wide variety of state officials and private persons,” including Trump’s communications about and organization and implementation of the “fake elector” scheme;
- Perform another “necessarily factbound” and admittedly “challenging” review of “Trump’s conduct in connection with the events of January 6 itself,” including an “objective analysis of ‘content, form, and context’” of Trump’s tweets and public statements on that day.
The court therefore ordered that the case be remanded — or returned — to Chutkan to determine whether these categories of alleged conduct are official or unofficial, and if official, whether the presumption of immunity can be rebutted.
What form that process will take has yet to be resolved. Some legal experts believe the Supreme Court’s repeated references to “factbound” or “fact specific” analyses require Chutkan to hold one or more evidentiary hearings “replete with important witness testimony,” as MSNBC legal analyst and former federal prosecutor Andrew Weissmann has written. After all, in classifying Trump’s public statements and tweets on and about Jan. 6, the Supreme Court noted that Chutkan could find relevant “what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally.” That sort of information is not evident from the indictment and would require additional proof.
On the other hand, other aspects of the task thrust into Chutkan’s hands seem to lend themselves to a more straightforward, albeit close, reading of the indictment, supplemented by briefs from the parties, as the Supreme Court suggests. Public reporting also indicates Trump’s team intends to argue that Chutkan can resolve which conduct is and is not immune “based on legal arguments alone, negating the need for witnesses or multiple evidentiary hearings,” which could be embarrassing or even politically damaging to Trump as he again campaigns for the presidency. But no matter how Chutkan intends to move ahead, she cannot start quite yet. Rather, a Supreme Court rule provides that unless the whole court or an individual justice orders or the parties themselves agree otherwise, a case does not come back to the trial court for 32 days after the judgment is entered. The special counsel did not plan to ask the Supreme Court to expedite that timing, NBC News reported earlier this month. Still, why wouldn’t the special counsel attempt to revive the case more quickly? Some believe that in lieu of delving into an extensive fight over which allegations and charges can be leveled against Trump, Smith’s office might first attempt to narrow its case by streamlining its indictment. That could mean substituting a new or superseding indictment for the existing one, but it’s not as simple as merely preparing a revised document. Instead, Smith would need a grand jury to review and approve such an indictment. Experts note that given the extensive testimony previously presented, prosecutors would not need to recall witnesses. A so-called summary witness, such as an FBI agent assigned to the case, could read relevant excerpts of such testimony to a grand jury, for example. But in any event, the case will not be sent back to Chutkan earlier than Aug. 2. And in February, during a hearing in another Jan. 6-related case, Chutkan revealed plans to be out of the country days later, on Aug. 5, unless the Trump trial were ongoing then. A review of publicly available court calendars reflects that Chutkan does not have any scheduled matters next month until Aug. 15. Assuming, however, that Chutkan does convene some form of public hearing in mid-August or shortly thereafter, the contours of what would transpire at such a conference, or whether any briefing will be ordered in advance, remains unclear. Moreover, some reports suggest Trump’s lawyers intend to file other pretrial motions unrelated to immunity once Chutkan retakes the reins. For example, despite successfully litigating the issue before Cannon, Trump’s team never moved to dismiss the Washington case on the grounds that Smith was unlawfully appointed and that his office was unlawfully funded. That could be because, in 2019, the D.C. Circuit rejected nearly identical arguments concerning the appointment of then-special counsel Robert Mueller. Nonetheless, at oral argument in the presidential immunity case, Trump lawyer John Sauer intimated it was just a question of timing: “We hadn’t raised it yet in this case when this case went up on appeal.” Given Trump’s potential challenge to Smith’s very authority to indict Trump in Washington and with Chutkan perhaps not assuming control of the case again for several more weeks, it’s not clear that the evidentiary hearings some think are warranted will happen any time soon. In fact, Chutkan holding any evidentiary hearing at all before year’s end might be a feat of judicial oversight and control in and of itself. The bottom line: Though the federal election interference case has technically survived the Supreme Court’s ruling, that decision will almost certainly bog the case down with legal wrangling over the coming months. And whether even a slimmed-down case progresses will hinge on further appeals and the election itself, because if Trump wins in November, this case is effectively over.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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