Donald Trump has been convicted of 34 felony counts in the New York hush money case—but there’s a lengthy appeals process ahead. And what ever happened to the other three cases against him—Jack Smith’s federal election interference and classified documents cases, and Fani Willis’ Georgia election interference case? All three have hit various roadblocks. To make it easier to follow all of Trump’s ongoing legal entanglements, each Monday, we’ll keep you updated on the latest developments in Keeping Up With the Trump Trials.
Special counsel Jack Smith is taking a long, hard look at his election interference case—and a New York Times report says Smith has decided against asking for a comprehensive review of evidence and witness testimony in a high-stakes hearing scheduled for next week. Meanwhile, New York Supreme Court Justice Juan Merchan is considering whether to delay Donald Trump’s sentencing for a second time in the hush money case or let it continue as planned, despite Trump’s defense team appealing the case on the grounds of presidential immunity. And after a nearly six-week-long wait, on Monday Smith finally filed his appeal of Judge Alieen Cannon’s decision to dismiss his classified documents case.
The Special Counsel Is Revising His Strategy in the Jan. 6 Case
Two weeks ago, Jack Smith requested an extension of an Aug. 9 filing deadline so he could have more time to figure out his next move in his election interference case. Now the special counsel is also against holding a hearing that would decide which of Trump’s charges should stick after the Supreme Court ruled Trump—and all future U.S. presidents—has a level of presidential immunity for actions taken while in the White House.
This prospective hearing could have turned into a mini-trial, where witnesses and experts get called to testify and make the case for why Trump’s charges should remain or should be dropped. It’s an exercise judges in all of Trump’s ongoing criminal cases will have to go through in order to apply the Supreme Court’s presidential immunity decision. And unnamed sources told the New York Times that Smith is now against holding a mini-trial in his own election interference case, as it would inevitably lead to a highly publicized airing of critical evidence mere weeks before the presidential election. Trump’s defense team would most likely object to this type of hearing, claiming it’s unfair to his ongoing presidential campaign.
Meanwhile, anonymous sources familiar with Smith’s decisionmaking also told Bloomberg that his team is revising their case against Trump. Both Trump and Smith have to formally detail their preferences for how Judge Tanya Chutkan should consider the federal election interference charges in light of the Supreme Court’s ruling by Aug. 30—an extension that Chutkan agreed to after a separate request by Smith. A hearing is scheduled for Sept. 5.
If Smith decides not to recommend any witness testimony or debate over evidence, it would be a big win for the former president. From the onset of Smith’s case, Trump has railed against the special counsel and his investigation, claiming political persecution. If Trump wins the November election, he’s expected to direct his Department of Justice to drop Smith’s case—but if Vice President Kamala Harris wins, the special counsel’s case will have a new lease on life.
So Will Trump Be Sentenced Next Month, or What?
Manhattan District Attorney Alvin Bragg told Justice Merchan that he’s not opposed to delaying Trump’s sentencing, currently scheduled for Sept. 18, which Trump has asked to push back pending his presidential immunity appeal. And now the decision lies in Merchan’s hands, with the presidential election a mere 10 weeks away.
“Ordinarily, if the defendant asks for a delay, and the prosecutor doesn’t object, then it would absolutely be granted,” Adam Pollock, former assistant attorney general of New York, told Slate in an email. However, most judges want to resolve cases quickly, allowing all parties involved to get some closure, and Pollock believes there is a not-insignificant chance that Merchan will stick to Sept. 18 and simply proceed with sentencing Trump.
If Merchan does not further delay sentencing—he already did once after the Supreme Court’s presidential immunity decision was released in June—Trump’s immunity appeal could still upend it, especially if the appeal is successful. Given that, Pollock noted that delaying Trump’s sentencing until after his appeal is resolved could save the justice some effort.
Another factor to consider is whether Merchan will sentence Trump to prison. Pollock believes that’s unlikely, given this is a nonviolent crime and Trump is a first-time offender. However, if Merchan keeps the Sept. 18 sentencing and does not give Trump prison time, it could be used as fodder in his appeal to suggest the hush money case was nothing but political theater. But if Merchan decides to give Trump prison time on Sept. 18, it could tangibly impact the November election.
Merchan has said he’ll announce his decision to either delay or keep Trump’s current sentencing date on Sept. 16.
Smith Officially Appeals the Decision to Dismiss the Classified Documents Case
New court filings made public on Monday revealed that the special counsel has officially filed an appeal against Judge Aileen Cannon’s decision to dismiss his classified documents case, nearly six weeks after filing a notice of appeal.
In July, Cannon dismissed the classified documents case, arguing that Smith was improperly appointed as special counsel by Attorney General Merrick Garland, and therefore he can’t legally prosecute Trump. On Monday, Smith pushed back on that assertion, writing that Cannon “misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General’s appointments of special counsels.”
Smith points to the Watergate scandal, which also used a special counsel to investigate Republican president Richard Nixon back in 1973. That appointment came after the Supreme Court ruled in United States v. Nixon that the AG did have statutory authority to assign special counsels. Smith argues Cannon is the only judge who has ever challenged the high court’s decision.
“The Supreme Court regularly uses qualifying language to indicate assumed premises but included no such caveat in Nixon when discussing the Attorney General’s authority to appoint the Special Prosecutor,” Smith wrote. “Nixon therefore binds this Court, just as it did the district court, and reversal is warranted on that ground alone.”
Smith filed his appeal with the 11th Circuit Court of Appeals, which has already laid out a schedule for the appeals process in this case. Both Smith and Trump are required to file briefs through mid-October, and oral arguments will likely be held a few months after that. The timeline suggests that Smith’s appeal of Cannon’s decision to dismiss will stretch well beyond November’s presidential election. And if Trump wins, his DOJ will almost certainly drop this case.
