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On September 28th, the Global Citizen Festival will gather thousands of people who took action to end extreme poverty. Join Post Malone, Doja Cat, Lisa, Jelly Roll, and Raul Alejandro as they take the stage with world leaders and activists to defeat poverty, defend the planet, and demand equity. Download the Global Citizen app today and earn your spot at the festival. Learn more at globalcitizen.org.com.
Hey everyone, Eli here wishing you a happy Friday morning. Well, all eyes will turn next week to the Democratic National Convention in Chicago. It'll be a riveting event, whether you love or hate the Democrats, it's going to be historic. It brings back a little bit of a personal memory for me.
I was actually, I don't know if I was an intern. They paid me a little bit. I worked for the Democratic National Committee and Convention in 1996 and was at the convention in Chicago in 1996. So it's a little bit of deja vu. I was just a runner. You know, I brought things wherever they needed to be and delivered packages from person A to person B. That sounds a little more nefarious than it is, just paperwork and that kind of thing.
Whatever needed to be done, I did. But the one thing that I really do remember is MTV was there. And those of you who are about my age, born in, let's say, the 70s, you will remember how big MTV was at this point in the mid-90s. And...
Gosh, I was rooming with the son of the then governor of Nevada, and he somehow had a connection to MTV, and they gave us a camera, like an old-fashioned camera like you would hold on, not on your shoulder, not the big, huge ones, but a handheld. And they said, just go around and tape yourselves and have fun. And they actually gave cameras to a couple other groups, I guess, duos.
And so he and I, Ross Miller was his name. His dad was Governor Miller. I forget his first name. We just sort of spent the day goofing around and interviewing delegates and talking to babies who were there. There were babies there. And MTV chose our bit and they put it on. And so it was on MTV Choose or Lose or whatever have you for the next several weeks. So again, if you can remember what MTV was like back then, everyone watched it. Certainly everyone in college where I went.
So that was my first time ever on TV. Then I took, I don't know, 20 years off, 25 years off before I started doing all this. But it brings back good memories. And by the way, one final footnote, that convention, 1996, yes, that was the Macarena Convention. You've all seen the clips of Bill Clinton and Al Gore and Hillary Clinton.
and delegates dancing painfully to Macarena, well, I was there. I lived it. I was there firsthand. I don't think I actually danced to the Macarena. I can't swear I didn't. I don't think there's footage of it, but it just wouldn't have been my style. I probably at the time even recognized that it was a little dorky. So even for me.
Anyway, little irrelevant reminisce for you. Next week, they're back in Chicago and we'll all be watching. Okay, on to this week's piece. As always, thanks for listening and send me your thoughts, questions, and comments. Letters at Cafe.com. I remember vividly the first time I lost a key piece of evidence. The NYPD had caught our defendant in Washington Heights with a fake police badge around his neck and a loaded gun in his waistband. And we charged him with federal firearms and armed robbery conspiracy crimes.
Better yet, for us on the prosecution side, we flipped a cooperating witness who would testify that he and the defendant had committed two prior armed robberies together by posing as cops and ripping off drug dealers, a fairly common thing in New York City at the time. A week or so before trial began, the judge held a conference to handle routine pretrial housekeeping. I confidently laid out the cooperator's expected testimony. That's out, the judge ruled nonchalantly, too prejudicial.
Now, for those who think that every judicial decision is rendered in scholarly prose replete with probing analysis and citations to applicable precedent, welcome to the real world. It was a kick in the gut. That's such bullshit. He can't do that, I whined afterwards. Sure he can, my supervisor responded. He's the judge.
My experience is a tiny potatoes version of what the U.S. Supreme Court has done to special counsel Jack Smith and his 2020 election subversion case against Donald Trump. The court declared for the first time in our history that a president is entitled to criminal immunity for official acts. That part was no surprise. The law has long recognized civil immunity, and the justices during oral arguments seemed in no mood to affirm the lower court's outright rejection of Trump's claim. But the court's
but the breadth of the Supreme Court's decision was astonishing. The majority held, for example, that, quote, in dividing official from unofficial conduct, courts may not inquire into the president's motives, end quote. It remains unclear exactly how a judge is supposed to draw that vital distinction. And the Supreme Court ruled that if conduct is immune, prosecutors cannot base a criminal charge on it, nor can they mention it at all during trial, even as necessary context or background.
Now the case has landed back in trial court before Judge Tanya Chutkin. She originally wanted the parties back before her today, but Smith asked for a few more weeks to gather his thoughts. Smith clearly has accepted that there won't be a pre-election trial despite his prior dogged efforts. Trump's counsel, for their part, ever intent on slowing things down, happily consented to the prosecution's delay request. When court reconvenes on September 5th, it'll be up to the judge to pick through the wreckage and figure out what can be salvaged.
On that question, the Supreme Court has offered pointed guidance, and it bodes poorly for the core of Smith's indictment. Trump's effort to coerce DOJ to gin up proof of non-existent election fraud? Almost certainly an official act, and therefore immune and out of the case altogether. Trump's pressure campaign aimed at his Vice President Mike Pence? Probably out. And Trump's public statements, including his tweets and his January 6th Ellipse speech, likely toast as well.
The Supreme Court conspicuously reminded Judge Chutkan that it's unimpressed with her work so far and will be watching her closely. The justices in the majority blasted the lower courts for, quote, the expedition of this case, the lack of factual analysis, and the absence of
pertinent briefing by the parties, end quote. Indeed, as we've discussed here before, Jack Smith, Judge Chutkin, and the intermediate appeals court judges tried to shortcut ordinary process to get Trump tried before the election. The Supreme Court noticed and they disapproved.
Most importantly, on the vital timing issue, the court has specified that Trump can appeal Judge Chutkin's decisions about what conduct is and is not immune before trial starts. That means as a practical matter, there's a 0.0% chance this trial happens before the November 2024 election.
Now, if you've been hoping that Trump faces accountability for trying to steal the 2020 election before voters head to the polls for the next one, don't despair. Not fully, anyway. For the record, I'm with you. The real problem here is that DOJ took over two and a half years to charge the case. They didn't leave themselves nearly enough runway, especially when you consider that this immunity challenge was obvious and foreseeable.
Judge Shutkin still can, and I believe probably will, order an evidentiary hearing to enable Smith to air some of his most explosive evidence before voters head to the polls. The judge now must sift through the prosecution's evidence and determine how much of Trump's alleged conduct was an official act and therefore immune, and which conduct can remain in the case.
She has some leeway here. On the one hand, the judge could opt to take what we call proffers from both sides, meaning detailed statements by the lawyers about what they expect their evidence to show. That's a little flat, but it's also perfectly permissible and efficient.
And then there's the more sensational alternative. The judge can permit Smith to call live witnesses to expound from the stand on what their trial testimony would be. I expect Smith to push for door number two and Judge Chutkin to agree. If that happens, brace for a series of dramatic in-court encounters.
We could see Trump's former chief of staff, Mark Meadows, take the stand to give his first ever public accounting of what his boss did and did not do before and on January 6th. And Mike Pence could testify about how Trump begged and eventually threatened him in an effort to get him to throw the election and how on January 6th he had to run for his life to avoid the frothing mob.
No, an evidentiary hearing won't hit nearly as hard as a jury trial and a verdict. And we won't actually see or hear any of it because federal courts don't permit cameras or live audio streaming. Fair enough, given that it's apparently the year 1892 right now.
We likely already know the most damaging information, as revealed in 2022 during the unforgettable January 6th select committee hearings in Congress and the ensuing 800-plus page report. But really, imagine Trump's own former chief of staff and his VP taking the stand in, let's say, September of an election year to describe firsthand how their former boss trampled on the Constitution to try to steal an election. Even if we all mostly know the story by now, that simply cannot be good for Trump at the
polls just weeks before voters cast their ballots. It's unclear how much of Smith's case will ultimately survive the Supreme Court's strafing. He might eventually go to trial on a tattered indictment focused on Trump's effort to pressure state and local officials without any of the damning evidence relating to DOJ and the VP and incitement of the rally crowd. Or the wounds inflicted by the Supreme Court might ultimately prove fatal.
But if Smith's goal is to expose Trump's conduct to the American public before the election, and let's face it, that's plainly been a driving force for the special counsel all along, despite his refusal to acknowledge it, he'll still have a backdoor path to partial success. Thanks for listening, everyone. Stay safe and stay informed.
