The reason it’s going to be a big year is that some cases that have long been digesting in lower courts have finally turned up at the Supreme Court this year and the decisions will have major effects on American governance.

But let’s start with the relatively small stuff first, by which I mean the endless fighting around Trump’s indictments.

The reason I say they’re small is that the cases themselves are quite narrow in their scope, being aimed at destroying the unique threat of Trump before the 2024 Presidential election, and therefore unlikely to arise again in future Presidential elections as both sides return to the status quo of letting Presidential indiscretions be dealt with via the traditional semi judicial/political method of Congressional investigating committees and, if necessary, impeachment.

Having said that there is this note of caution from respected prosecutor Andy McCarthy (chiefly known for leading the prosecution of the 1993 WTC bombers):

When Trump is involved (and when isn’t he?), the Trump-obsessed can think of no one and nothing else. Precedents, they reckon, don’t matter because Trump is a Unique Evil in the World. He has convinced the all-id-all-the-time crowd that whatever governmental norm may be in their way is worth bulldozing for the greater good of bowling him over – as if the new, dangerous precedents they set won’t erode the rule of law and, ultimately, our constitutional republic.

Aside from the nonsense of the New York trials over Trump defaming one E J Carrol, and DA Bragg’s pursuit of Trump over accusations of property development fraud, plus the Georgia RICO charges (Racketeer Influenced and Corrupt Organizations Act), the real action lies with three other legal matters:

  1. DOJ charges against Trump in Washington D.C. based on the events of January 6, 2021.
  2. DOJ charges in Florida that Trump illegally took and kept classified documents after leaving office.
  3. The decision by the Colorado Supreme Court to not allow Trump to be on this year’s election ballot because they’ve deemed him guilty of insurrection.

I’ll deal with each of these in Part II and Part III in this series, but first there’s some preliminary stuff.

Special Counsel Jack Smith

The man leading the charge in both trials, DOJ prosecutor, Jack “krazy-killer-eyes” Smith, has gained a poor reputation by pursuing politicians using extremely stretched laws as well as illegally piercing client-attorney privilege, leaking to the media, and witness enticement (read it all):

The script earned Mr. Smith a reputation as a hard-driving, intense prosecutor, but a string of mistrials and overturned convictions led to sharp rebukes from federal judges, including U.S. Chief Justice John G. Roberts Jr.
…
Mr. Smith’s conviction against former Virginia Gov. Robert F. McDonnell, a Republican accused of accepting payments and gifts in violation of federal public corruption laws, was overturned by the Supreme Court. [Overturned 9-0: unanimously in other words.]

Smith has continued to stumble even as he’s touted by the Democrats as yet another hero who will get Trump (following the failures of Comey, McCabe, Strzok, Mueller, Avenatti, etc), starting with the Washington D.C. trial. Supreme Court Rejects Jack Smith’s Request For Expedited Review of Trump Immunity Claim:

The Supreme Court has denied Special Counsel Smith’s request for an expedited review of the case against Trump. There won’t be a trial in DC before the 2024 election. No mistake – this is a big loss for the Special Counsel.
[Helped along by lawyer Steven Calabresi of Reason magazine – and no fan of Trump]

The reason that SCOTUS booted it back to a normal appeals court is that they’ve got a case before them arising from an actual Jan 6 protester where most of the same arguments being used against Trump are on the table. More on that in Part II.

Smith’s case in Florida is also in strife: (although that’s not on track for SCOTUS yet)

Judge Cannon already expressed doubt respecting Smith’s assurances that the D.C. trial would not overlap the May 20 trial date in Florida and has suspended all pretrial matters regarding Trump’s access to classified evidence – a very lengthy process. As you can see, by taking his time to press charges and then going hog-wild on prosecuting Trump, Smith was hardly nimble and is now ensnared in a jumble of impossible deadlines and the kind of dilemmas a reasonable person would have expected had he sat for so long before trying to interfere with the election by instituting multiple cases. His strategy was weak and obvious, and he could not have reasonably expected the court would go along with this. Indeed, when asking the Supreme Court to bypass normal procedures, he tipped his hand that his concern was election-based.

Finally there’s some fun being had in the form of an amicus brief filed for the Washington case. Amicus brief means “friend of the court”, people not party to the legal case itself but helping the court on issues bearing on the case. Here the issue is a whopper: on November 18, 2022, when Attorney General Merick Garland appointed Smith as special counsel, Smith was not a U.S. Attorney, nor was he appointed to assist one, which means that everything he’s done so far may not have had lawful authority. The Friends Of The Court are also not lightweights:

The brief was filed by former U.S. Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson from Northwestern and Boston University Law Schools, respectively.

You can read the details at the (lengthy) link of you wish but the bottom-line is that such Special Counsel’s have to be appointed by the President or Congress, either directly or via an enabling Act (which does exist) and that the people chosen have to come from a list of previously appointed US Attorneys. Meese and his team argue that the appointments of, for example, Patrick Fitzgerald (the Valerie Plame Affair) and John Durham (CIA tape destruction and the “Russia Collusion”) as past “Special Counsels” were all valid because, at the time of their appointment, each was serving as a Senate-confirmed United States Attorney. Their appointment as “Special Counsel” did not alter their authority.

[But Smith was a private citizen when appointed], never having been nominated by a president or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by Garland to exercise prosecutorial authority equivalent to United States Attorneys. Any action purporting to create such a position – or “office” — and vest it with the same authority as United States Attorneys is unconstitutional because it was not “created by law.”
…
[By contrast] according to the Biden DOJ, the Attorney General can simply create a Special Counsel Office, appoint a non-government actor to that post, grant him the power to wield the authority of a grand jury, draw resources from various federal law enforcement agencies, and direct their conduct, and seek search and arrest warrants when loosed upon a member of the public.

From a legally technical POV it’s an interesting side note that lawyers love having fun with and it likely won’t come to anything (it didn’t with Mueller where the same argument applied). But it might, thus blowing up both cases in practice, even though another proper Attorney could be appointed to replace Smith. We’ll see what the courts, including the Supreme Court if necessary, rule.