Andrew Weissmann, former top prosecutor for the Justice Department, Harry Litman, former U.S.
U.S. District Judge Tanya Chutkan is about to wade into uncharted legal waters, deciding which of Donald Trump’s alleged election subversion crimes are official acts of an American president and hence at least presumptively immune from prosecution. The Supreme Court directed Chutkan to undertake this unprecedented litigation by creating out of whole cloth a doctrine of criminal immunity for a president’s “official acts.
But the reality is Smith has “changed” his position because the circumstances have changed. The Supreme Court directed that the evidence be disclosed and litigated. In our criminal justice system, the Sixth Amendment’s right to a “public trial” means virtually all litigation is public. According to Trump, Smith should have said, “I don’t care about the Supreme Court” — a ludicrous stance to take.
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