Keeping Up With the Trump Trials: Bad News for Jack Smith’s Election Interference Case

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 Monday we’ll be looking back at all the Trump trial–related developments you might have missed the previous week.

We finally have a jury in Donald Trump’s first-ever criminal trial, and opening arguments took place on Monday. Meanwhile, the Supreme Court seemed skeptical of the Department of Justice’s legal strategy for charging hundreds of defendants who participated in the violent insurrection at the Capitol—and their decision could weaken Jack Smith’s election interference case against Trump. Plus, a federal judge said civil lawsuits against the former president for his role in the Jan. 6 insurrection can move forward, regardless of the status of his criminal cases and his presidential immunity appeal that’s sitting with SCOTUS.

Last week the Supreme Court heard arguments in Fischer v. United States, a case about a man who stormed the Capitol three years ago and was subsequently charged by the Department of Justice with obstructing an official proceeding of Congress. At the heart of the lawsuit is whether the DOJ is overreaching in charging folks who participated in the violent insurrection on Jan. 6, and so far it seems like the justices are inclined to say … yes, yes it is.

“There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past?” said Justice Clarence Thomas. Nearly all of the high court’s conservative justices took a similar stance, questioning the DOJ’s intentions and whether there was any plausible precedent in using Section 1552(c) of the Constitution, which says that anyone who  “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so” is acting unlawfully.

Even though this case makes no mention of Trump, special counsel Jack Smith has also charged Trump under Section 1552(c). However, as Slate’s Mark Joseph Stern explains, Smith’s federal election interference indictment of Trump doesn’t entirely hinge on this statute, though it does “weave obstruction into both the facts and the legal theory of the case, placing it at the center of a broader criminal conspiracy to overturn the 2020 election.”

If SCOTUS rejects the DOJ’s use of Section 1552(c) in Fischer, Smith would likely have to drop at least two of his four charges against Trump in the Jan. 6 case and reconstruct most of his indictment. That would create a major opening for Trump, allowing his attorneys to demand even more delays.

Last week, after some trial and error, a 12-person jury (with six alternates) was finally selected in the hush money trial. On Monday, both sides laid out their opening arguments. Prosecutors for Manhattan District Attorney Alvin Bragg explained why they believe Trump illegally influenced the 2016 election when he allegedly orchestrated a hush money payment to porn actor Stormy Daniels in order to protect his presidential campaign and then lied to conceal the purpose of the payment.

Prosecutors also introduced their first witness, David Pecker, former CEO of American Media Inc. (Here’s a refresher on who Pecker is, and the other noteworthy people who might appear in this trial.) Pecker confirmed that the National Enquirer “used checkbook journalism, and we paid for stories.” In 2018, Pecker admitted that he paid Karen McDougal, another woman who claimed she had an affair with Trump, $150,000 under the false pretense that he would publish her story, but never did in an effort to keep Trump’s public image clear of any drama in the lead-up to the election.

Trump’s defense team also presented its opening statement, with attorney Todd Blanche coming out and claiming, “I have a spoiler alert: There’s nothing wrong with trying to influence an election. It’s called democracy.” (As Slate’s Jeremy Stahl pointed out from the courtroom, “The judges who have previously looked at this issue have decided that, yes, it is a crime to violate campaign finance law to unlawfully influence an election.”) Blanche insisted that prosecutors were making things out to be “sinister” and that jurors will “learn it’s not.”

The former president faces several civil lawsuits from police officers who worked the Capitol on Jan. 6 and from Democratic lawmakers, all vying to hold Trump accountable for his actions that day. However, Trump has been trying to get each of these cases paused, arguing it would jeopardize his defense strategy in his federal criminal election interference trial (the one that Jack Smith is prosecuting).

However, in a new ruling last week, Judge Amit Mehta said it won’t be necessary to pause those cases. “It is true in a sense—both cases center on the former president’s actions in the lead up to and on January 6, 2021. … But [Trump] overstates the significance of that factual overlap in the present posture of these matters,” wrote Mehta.

The judge said the lawsuits from police officers and lawmakers could proceed uninterrupted. “This court is unlikely to make an immunity determination before the end of the Supreme Court’s term. Thus, if the Court’s ruling on criminal immunity is relevant to the outcome here, it can easily be applied,” wrote Mehta.