Three Strikes for Jack Smith: Latest Ruling Should Be the Last for Him By C. Douglas Golden
September 16, 2023 at 8:50am
Special counsel Jack Smith hasn’t been having a particularly fantastic time when it comes to pretrial rulings in his cases against former President Donald Trump.
His latest setback comes in his Jan. 6 case, where a three-judge panel in Washington, D.C., ruled that the special counsel could not have access to conversations on a phone from a top Trump ally in the House of Representatives.
The newly unsealed opinion, which was revealed Wednesday, is the proverbial third strike in Smith’s cases against the former president and current front-runner for the 2024 GOP nomination.
According to Politico, the ruling from the D.C. Circuit Court of Appeals said that the special counsel’s office violated Pennsylvania Rep. Scott Perry’s rights under Speech or Debate clause of the Constitution in its attempts to secure his smartphone communications with the Trump White House and other colleagues.
Article I, Section 6, Clause 1 of the Constitution states that members of Congress shall be “be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; for any Speech or Debate in either House” except in cases of “Treason, Felony and Breach of the Peace.”
The FBI had initially seized Perry’s phone in August 2022 after receiving a search warrant — before the special counsel was appointed, but while the Department of Justice was zeroing in on Trump regarding the events surrounding the Capitol incursion on Jan. 6, 2021.
“Prosecutors, however, did not immediately access Perry’s phone and instead sought a second search warrant governing its ability to review Perry’s communications with other members of Congress, the executive branch and others related to the 2020 election,” Politico reported.
A lower court ruling by U.S. District Judge Beryl Howell, Politico noted, “largely sided with the Justice Department’s effort to access Perry’s phone,” with Howell arguing that Perry’s “informal” fact-finding about the results of the 2020 election was not protected by the Speech and Debate clause.
The unsealed decision from the three-judge panel on Wednesday overturned that ruling, sending the case back to Howell.
“While elections are political events, a Member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts,” wrote Judge Neomi Rao in the majority opinion.
“Representative Perry’s conversations with other Members concerned the passage of proposed legislation as well as the exercise of the constitutional duty to certify the electoral votes from the 2020 election,” Rao wrote. “These communications were privileged, and we leave it to the district court to implement this holding on a communication-by-communication basis.”
While all three judges on the panel joined Rao’s decision, Judge Greg Katsas issued a concurring opinion in which he said he viewed the privilege more narrowly than the other two judges on the panel, but that his narrower view of the Speech and Debate clause did not apply to “informal” fact-finding in question.
“The privilege claims asserted by Representative Perry are substantially overbroad. Many of the disputed records involve communications through which he sought to influence the conduct of officials outside the Congress—Executive Branch officials, state legislative officials, and campaign officials. Many other records involve press releases or media statements,” Katsas wrote, asserting that these were unprotected.
“But some of the disputed records involve nothing more than Representative Perry gathering information to inform upcoming votes. In my view, the Speech or Debate Clause protects that activity.”
Rao and Katsas were Trump nominees; the other judge on the panel, Karen LeCraft Henderson, was nominated by President George H.W. Bush. Howell was an Obama nominee.
The decision was described by Politico as “a setback for Smith and comes on top of more than a year of delay that investigators have encountered in seeking Perry’s records, but the ruling could also have significant impact any time the Justice Department seeks to investigate the actions of members of Congress.”
“It’s unclear whether Smith will appeal the decision to the full bench of the D.C. Circuit or to the Supreme Court. His office declined to comment, as it did last week when the court released an order broadly outlining the outcome of the fight,” Politico noted.
Perhaps most importantly, however, it comes as the special counsel’s office is experiencing what could be charitably termed a late-summer dry spell.
On Aug. 7, Judge Aileen Cannon, the Florida judge overseeing the Trump confidential information case, struck down two of Smith’s filings and demanded he explain “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post- indictment hearings on matters pertinent to the instant indicted matter in this district,” according to Axios.
Meanwhile, in a July 31 hearing, the special counsel’s team admitted to the court that it hadn’t turned over all pertinent evidence to Donald Trump’s defense lawyers despite previously avouching that they had.
The evidence was part of a superseding indictment filed on July 27 in which Smith’s office filed additional charges against Trump, claiming he instructed his team to delete security footage at his Mar-a-Lago estate prior to the August 2022 FBI raid there.
“On July 27, as part of the preparation for the superseding indictment coming later that day and the discovery production for Defendant De Oliveira, the Government learned that this footage had not been processed and uploaded to the platform established for the defense to view the subpoenaed footage,” the July 31 filing read.
“The Government’s representation at the July 18 hearing that all surveillance footage the Government had obtained pre-indictment had been produced was therefore incorrect.”
The prosecutors were required by law to upload the footage to an online platform where it could be viewed by the former president’s counsel.
In a statement after that legal faux pas came to light, Trump accused Smith of “prosecutorial misconduct.”
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