Turley: What If Jack Smith Held A Trial And No One Came?

Authored by Jonathan Turley,

In 1966, Charlotte E. Keyes wrote a famous article for McCall’s magazine titled “Suppose They Gave a War and No One Came.” Special Counsel Jack Smith may be contemplating the same fate.

Putting the tongue-in-cheek title aside, the odds are that some people will come to any trial of President Donald Trump. After all, a lot of people have to come from the judge to the jurors and counsel. However, Smith has had an ominous week that could severely complicate his plans for convicting Donald Trump before the election. Moreover, a trial after the election could mean no trial at all.

Before this week, Smith found himself on the losing end of the schedule in Florida in his prosecution of Trump for his retention of classified documents.

Judge Aileen Cannon has scheduled a trial for May 20, 2024, but that could easily move with additional delays or appeals in the case.

I have always viewed that case to be the strongest against Trump, but the huge number of classified documents have (as predicted) slowed the prosecution. Despite Smith’s pushing for a pre-election trial, his structuring of the charges undermined that schedule.

Smith then pushed hard for a pre-election trial in the January 6th case in Washington where he seemed to have a supportive judge in Judge Tanya Chutkan who shoehorned the start just before the Super Tuesday elections.

Now, however, Judge Chutkan has been forced to stay the case indefinitely pending the appeal of the presidential immunity claim made by Trump. The matter is now before both the United States Court of Appeals for the District of Columbia and the Supreme Court. The Supreme Court gave Trump until December 20th to respond to Smith’s request for an expedited review — leapfrogging over the D.C. Circuit.

Smith’s filing conveys priority, if not a necessity, in trying Trump before the election. The Supreme Court may not share that sense of urgency. Traditionally, the Supreme Court has preferred to wait to allow appellate courts to render decisions. Since a conviction will not make Trump ineligible to run for the presidency, the question is why the March date should short circuit the review process.

If the Supreme Court ultimately does not rule on the merits, the period for review would easily supplant the trial schedule since an appeal could be taken to the entire D.C. Circuit (en banc) and then to the Supreme Court.

That did not change the March 4 trial date, but it could well make that date unworkable if the appeals drag on.

Then to make the week complete, the Supreme Court granted certiorari in United States v. Fischer.  That case turns on the proper interpretation of the obstruction provision under Section 1512(c)(2).

Fischer was charged with obstructing an official proceeding of Congress and based solely on his trespass in the Capitol.

A ruling in his favor could effectively cut away half of the case against Donald Trump. Among the four counts brought by Smith, Trump is charged under 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding) (Count Two) and  18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding) (Count Three).

If those two counts fell to the wayside, Smith would be left with a count on conspiracy to defraud the United States (Count One) and conspiracy against rights (Count 4). Those counts contain other challengeable elements which would have to be appealed after any conviction.

At some point, the mad rush for a March trial will look illogical and gratuitous if key legal issues remain unresolved  and pre-trial motions and discovery remain incomplete in February.

The problem for Smith is that a trial after the election could mean no trial at all. If Trump is elected, he could give himself a preemptive self-pardon, though some disagree with this view. Moreover, the new Attorney General could scuttle or undermine the prosecution.

In other words, it is possible that Jack Smith might never see a jury in either case.

That would still leave the New York and Georgia cases, which are not subject to presidential pardons. However, those cases (particularly the one in New York) have their own challengeable elements.

None of this means that Trump is out of the woods. He will continue to face a daunting daisy-chain of civil and criminal cases around the country. Moreover, it is not clear how the schedule will shake out with both the D.C. Circuit and the Supreme Court giving expedited attention to the immunity question. He could still face at least one federal trial before election day.

However, Smith must be wondering if, assuming the schedule breaks in favor of Trump, he would be holding an empty sack come January 2024.