This Week in Lawfare: Upcoming SCOTUS Decisions May Limit Jack Smith

Following the criminal trial in Manhattan, the legal proceedings against President Trump have slowed to nearly a halt.

The next major developments will likely be the U.S. Supreme Court’s decisions in two Trump-related cases. In one, the justices are weighing the extent of presidential immunity from prosecution; in the other, the court will rule on whether an evidence-tampering statute was misapplied when used to bring “obstruction of an official proceeding” charges against Jan. 6 defendants. Notably, Special Counsel Jack Smith has brought the same kind of charge against the former president.

Here’s the latest information you need to know about each case.

Read our previous installments here.

Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment

How we got here: In this New York state criminal case, Manhattan District Attorney Alvin Bragg — who The New York Times acknowledged had “campaigned as the best candidate to go after the former president” — charged former President Donald Trump with 34 felony charges for alleged falsification of business records. Trump’s former attorney Michael Cohen paid pornographic film actress Stormy Daniels shortly before the 2016 presidential election as part of a nondisclosure agreement in which she agreed not to publicize her claims that she had an affair with Trump (who denies the allegations). Nondisclosure agreements are not illegal, but Bragg claims Trump concealed the payment to help his 2016 election chances and in doing so was concealing a “crime.”

This criminal trial concluded on May 30, with the jury returning a guilty verdict on all 34 felony counts of falsifying business records. This case marks the first time a former U.S. president has been convicted of a felony. President Trump, who is expected to appeal the verdict, will be sentenced on July 11.

The conviction does not affect President Trump’s ability to run for president, though it may present complications with his ability to run a modern presidential campaign. For instance, if he were to receive a sentence including home confinement, he may be forced to request permission from a New York State bureaucrat for permission to travel to hold a campaign rally.

Latest developments: On Tuesday, the New York Court of Appeals, which is the state’s highest court, dismissed President Trump’s bid to remove his gag order. The gag order remains in place even though the trial concluded on May 30.

Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results

How we got here: The Georgia state criminal case is helmed by District Attorney Fani Willis and her team of prosecutors — which until recently included Nathan Wade, with whom Willis had an improper romantic relationship. Willis charged Trump in August 2023 with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. This case is currently stalled while the Georgia Court of Appeals hears an appeal on whether Willis should be disqualified from the case. The hearing is scheduled for Oct. 5, 2024.

Latest developments: On June 12, Fulton County prosecutors asked the Georgia Court of Appeals to dismiss Trump’s appeal regarding whether District Attorney Fani Willis should be disqualified from the case. In a filing on Thursday, President Trump’s legal team opposed the prosecutors’ motion to dismiss and asserted that the motion was a “desperate bid to avoid disqualification.”

Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents

How we got here: In this federal criminal case, special counsel Jack Smith and federal prosecutors with Biden’s Justice Department charged former President Trump in June 2023 with 40 federal charges related to his alleged mishandling of classified documents at his Mar-a-Lago residence. In early May, Judge Aileen Cannon postponed this trial indefinitely.

Latest developments: On Friday June 21, Judge Aileen Cannon will hear arguments about whether Special Counsel Jack Smith’s appointment was constitutional.

Washington, D.C.:  Prosecution by Biden DOJ for Jan. 6 Speech

How we got here: In this federal criminal case, Special Counsel Jack Smith charged former President Trump with four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. President Trump’s lawyers have argued that immunity extends to actions taken by a president while acting in his official capacity and that, in any event, the First Amendment protects his right to raise legitimate questions about a questionable election process.

Latest developments: This case is currently stalled while awaiting a ruling from the Supreme Court on former President Trump’s immunity claim. The court generally issues its decisions by the end of June or early July. The court’s imminent decision in Fischer v. United States on whether 18 U.S.C. § 1512, an evidence-tampering statute, can be used to prosecute Jan. 6 defendants for “obstruction of an official proceeding” will also have implications for the Trump case, since two of the four charges brought by Special Counsel Jack Smith are based on that statute.

New York: Lawsuit by A.G. Letitia James for Inflating Net Worth

How we got here: In this New York civil fraud case, Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump under a civil fraud statute alleging that he misled banks, insurers, and others about his net worth to obtain loans, although the loans have been paid back and none of the parties involved claimed to have been injured by the deals. Following a no-jury trial, Judge Arthur Engoron — whom Trump’s lawyers have accused of “astonishing departures from ordinary standards of impartiality” — issued a decision in February ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond.

Latest developments: On Thursday, President Trump’s legal team filed a motion to remove Judge Engoron from the case, asserting that Judge Engoron “may have engaged in actions fundamentally incompatible with the responsibilities attendant to donning the black robe and sitting in judgment.” Specifically, the motion alleged that Judge Engoron violated the New York Code of Judicial Conduct by discussing the case with a real estate lawyer prior to issuing his decision.