The Fate of Jack Smith’s Election Case Is in Limbo

Keeping up with Donald Trump’s court schedule is a dizzying task, since he faces two federal trials, a criminal trial in Georgia, and two separate civil and criminal trials in New York. (Oh, and he’s running for president.) To make it easier to follow along, each week we’ll be looking back on all the recent Trump trial–related developments you might have missed. (Keeping Up With the Trump Trials will be taking a break over the December holidays and will be back the first week of January.)

As we head into the holiday season, Trump’s civil fraud trial is in the process of winding down and should wrap up in the new year. And all eyes are on the Supreme Court as it considers two matters that could delay Trump’s federal 2020 election interference trial (the one that was set to start in Washington on March 4). Here’s the latest:

What “corrupt” actions fall under the definition of “obstruction to an official proceeding”? The answer to that question could affect over 300 cases brought by the Department of Justice—including the one special counsel Jack Smith brought against former President Trump.

Last week, the Supreme Court agreed to take on a case brought by Joseph Fischer, a former Pennsylvania police officer, that seeks an answer to this question. Fischer was charged with obstructing an official proceeding after entering the Capitol on Jan. 6, 2021, along with a slew of other charges, and has been trying to get this specific charge, which carries a maximum prison sentence of 20 years, dismissed. At first, a Trump-appointed judge did dismiss Fischer’s charge of obstruction, arguing that because his actions didn’t amount to tampering with a “document, record or other object,” he had not violated the statute.

The DOJ appealed that decision to the U.S. Court of Appeals, and it worked, reversing the earlier court’s decision for its narrow interpretation. The appeals court also said that the statute in question applies to all forms of action that are intended to obstruct an official proceeding, not just document tampering.

Fischer appealed again—and now the Supreme Court has agreed to hear the case and will issue a decision at some point before June 2024. It’s not immediately clear how the court will handle it, but three legal experts writing for Slate expect that it won’t ultimately delay the trial much, if at all.

The Supreme Court is also considering whether to weigh in on Trump’s presidential immunity appeal.

Trump’s lawyers have been trying to get the DOJ’s federal election interference case dismissed, arguing that Trump is protected from prosecution for actions he took while he was in office. Initially, Judge Tanya Chutkan, assigned with overseeing this case, rejected the absolute immunity argument, but the DOJ’s case is now on hold while an appeals court decides on Trump’s claim. But before the appeals court could make a decision, Smith took an unusual step: In order to avoid delaying the March 4, 2024, start to the trial, he petitioned the Supreme Court to consider whether a president has absolute immunity from criminal prosecution for conduct Trump committed while in office.

By going to SCOTUS directly, Smith is hoping the justices agree to supersede the appeals court decision, since it’s likely to end up with the high court anyway. Luckily for Smith, the Supreme Court signaled that it was considering his petition—but this is still no guarantee that it will hear this case. The appellate court, meanwhile, has agreed to its own expedited schedule, with briefing due in early January.

Since the beginning of October, Trump’s civil trial has been filled with theatrics, and last week was no exception. Trump was expected to testify again (he already testified for the prosecution) but suddenly dropped out, claiming on Truth Social that he had “nothing more to say.” And true to form, he also railed against New York Attorney General Letitia James and her case against him, chalking it up to “TOTAL ELECTION INTERFERENCE (BIDEN CAMPAIGN!) WITCH HUNT.”

James’ suit charges Trump with knowingly overinflating his net worth and the value of some of his biggest signature properties—including Trump Tower and Mar-a-Lago—and doing so in order to secure loans and more favorable insurance terms. And before the trial began, Judge Arthur Engoron issued a pretrial ruling that found that Trump had committed fraud, pivoting the trial’s focus to determining just how much fraud and how large the penalty should be.

Trump’s lawyers vehemently denied there was any fraud and argued that there were disclaimers on every financial document warning lenders that valuations could be incorrect. They also claimed that no banks were harmed by doing business with Trump. At the same time, the New York attorney general’s office argued that Trump and his sons directly instructed their staff to overinflate valuations, even calling in Michael Cohen—Trump’s former personal fixer, who himself served prison time for campaign finance violations—to testify.

Trump will likely appeal Engoron’s verdict, just like he appealed the gag order Engoron issued, which banned the former president and his lawyers from publicly commenting on his court staff. A New York appeals court rejected that appeal.

Speaking of that gag order: Trump’s attempts to fight it were once again unsuccessful last week.

Back on Day 2 of the civil fraud trial, Trump took to Truth Social to publicly criticize Allison Greenfield, the principal law clerk who sat beside Engoron throughout the trial. That’s because Greenfield and Engoron would often pass notes and consult each other during oral arguments. Trump felt Greenfield was unfairly influencing his trial, referring to her as a “politically biased and out of control, Trump Hating Clerk.”

Engoron quickly issued a gag order on Trump and his lawyers that barred them from publicly speaking about his court staff, an order Trump violated twice, earning $15,000 in fines. Trump appealed the gag order, and last week a New York appellate court rejected the appeal. The court found that Trump had not used “the proper vehicle for challenging” it, essentially forcing him to go back to Engoron for his appeal.

It’s not clear if Trump’s lawyers will reroute their appeal efforts to Engoron, since at this point the defense and prosecution have rested their cases and closing arguments are scheduled for Jan. 11. Even Chris Kise, Trump’s attorney, acknowledged that the appellate court’s decision essentially put his client in “a procedural purgatory.”

A jury ordered the former New York City mayor to pay $148 million to former Georgia election workers Ruby Freeman and Shaye Moss. In his efforts to help Trump overturn the 2020 election results, Giuliani tweeted an edited video of both women counting ballots at Georgia’s State Farm Arena. The video was used to falsely accuse Freeman and Moss of adding “suitcases” of illegal ballots into Georgia’s ballot-counting process. Giuliani even publicly identified both women by name online and on TV, leading to a torrent of violent, racist harassment directed at the election workers.

Freeman and Moss said in court documents that Giuliani’s actions completely upended their lives. Freeman faced so many serious threats that the FBI recommended she not return to her home for more than two months, and on two separate occasions, strangers showed up to her grandmother’s home to make a “citizens’ arrest.” Moss received so many threatening emails at her job that it drove her to quit and find a new job elsewhere. Both women said they could no longer live at their homes. Moss even fears shopping at grocery stores in case she is recognized.

Freeman and Moss may also end up being witnesses in Smith’s federal election interference case. “Make no mistake. This huge verdict for Ruby Freeman and Shaye Moss is a sign of how things will go for Trump before a jury—when these two American heroes are likely to be prosecution witnesses for Jack Smith and the Department of Justice,” former Department of Defense special counsel Ryan Goodman wrote on X, formerly known as Twitter.

Giuliani also faces 13 charges in Fulton County District Attorney Fani Willis’ election interference case—the same number as Trump—and is an unindicted co-conspirator in Smith’s federal election interference case. Oh, and he had his law license suspended.