LiveNOW from FOX | Neama Rahmani discusses superseding indictment against Trump in Jan. 6 case

in the meantime though we want to bring into the conversation our friend legal analyst and former Federal prosecutor DEA Romani to help us make sense of what Jack Smith did today he joins me uh Nema good to see you here uh we thought of you we had to get you on we got to talk about this what is Jack Smith up to here I've heard the words that this is a revising of the previous indictment or a reframing of the previous indictment now from what I understand and I'm not a lawyer superseding means a additional charges in an additional indictment we didn't see that here did we why you're absolutely right Andrew normally when prosecutors go back to the grand jury and get a superseding indictment they're piling on they're adding more charges that's not what happened here in fact Jack Smith did the opposite he removed some of the allegations even though we're still dealing with the four same claims essentially conspiracy to defraud the United States and obstru an proceeding based on the US Supreme Court's immunity ruling Jack Smith wanted to take out some of the allegations that might fall into one of those immunity categories and without getting into the legal weeds too much the Supreme Court's majority opinion said there's three categories core constitutional acts that are absolutely immune other official acts which are subject to immunity but they can be rebutted and personal private acts that are not subject to immun so when it came to Communications with Justice Department officials and one of the unindicted co-conspirators there was Jeffrey Clark Jack Smith took out those allegations because those were Communications with cabinet officials and their appointees and with respect to Mike Pence obviously he was a individual who was vice president and his job was to certify the election but also someone that was running for president again with Donald Trump and we know that campaign activities are historically personal private not official so what Jack Smith tried to do is reframe some of the allegations related to former president Mike Pence as campaign and personal acts not official ones okay yeah Nema let's talk about uh some of that reframing here uh the Fox News brain room has one of the examples uh to illustrate the point in the old indictment there were more than 30 references to the justice department in text in the new indictment no results were found when searching for the justice department in the text of the new indictment now let's talk about that the Associated Press uh says this uh that in its decision on immunity the Supreme Court ruled Trump cannot face criminal charges related to any of his interactions with Justice Department officials finding that a president's dealings with the Department were part of the core official duties of his office that seems pretty cut and dry I think to a lot of viewers it does to me here about what Jack Smith was trying to do uh kind of elighting and deleting any reference to the justice department because it was found in the ruling by the Supreme Court that a president can communicate and interact with their own justice department on whatever right absolutely and that's one of the few concrete examples that was actually in the Supreme Court's opinion so obviously Jack Smith wants to comply with that and that was deemed to be a core constitutional Duty which means you can't charge it nor can he introduce any evidence of it at trial so that would all be reversible errors so Jack Smith You know despite what some folks May argue has been very conservative in how he's charged Donald Trump I'll give a few examples he didn't charge him with Insurrection or seditious conspiracy like some folks had wanted which would have potentially disqualified from him from public office in the classified documents case he filed it in Florida which was a less favorable venue than Washington DC because he didn't want to deal with a motion for a change of venue and now what we're seeing here is he's trying to be more Surgical and we saw this even in the original indictment itself he didn't take a fonny Willis kitchen sink approach he didn't charge everyone like Giuliani and Mark Meadows and others he wanted just focused on Donald Trump and now he's even focusing those charges even more because we know obviously Trump is going to file a motion to dismiss this case both in terms of Jack Smith being appointed that appointment violating the Appropriations and the appointments Clause we know judge Canon and South Florida agreed but also on classified immunity so we know that motion is coming so this is more of a defensive maneuver to make that indictment a little bit more bulletproof for judge Tanya chuin and DC who's going to rule on that motion you know um NE let's talk about how we characterize where this case is because you can make the argument it's somewhat been frozen in place since last December because of the immunity question hanging over it now that the Supreme Court you know has ruled on the immunity question at least partly uh they also partly threw it back to the lower courts here is that why Jack Smith uh took this chance today or was this always in the offing was Jack Smith and his team there in the special council's office going to have to respond either way about the direction of this indictment and the direction of this case in the wake of the immunity ruling from the Supreme Court or was it a complete surprise here is this a Jack Smith wholly undeterred by the immunity ruling here clarifying how he is going to navigate this going forward it's Jack Smith trying to tailor that indictment to the Supreme Court's decision both in terms of the immunity case and the obstructing and official proceeding case he has his eyes on not just the trial court but the appellant courts and we know that this case will go to the DC circuit like it has once before and again likely to the Supreme Court that will decide whether the allegations in this case were they personal Acts or were they official and are they subject to immunity because we know based on Supreme Court precedent that that determination is immediately appealable just like the judge St the case the first time around so this issue could be sorted out by the Supreme Court because let's be honest we haven't dealt with immunity in a criminal case since Nixon there has been some litigation uh with respect to Bill Clinton and others about civil lawsuits so now that we know what the law is the judge in the case is going to have to decide were these acts personal were they official is Trump immune and once that decision is made that case is going to go back up on appeal and this time around Jack Smith wants to be safe and make sure there's nothing in that indictment that the conservative justices in the Supreme Court might take issue with okay but some of Jack Smith's detractors and opponents are describing this as a doover that he's getting a second shot now in the wake of the immunity ruling would you characterize that as that or or no is that inaccurate to describe it as that well it is somewhat of a doover but let's be honest none of us knew what the Supreme Court was going to do on presidential immunity because it was really Uncharted legal Waters so even if the case were dismissed based on immunity usually that dismissal wouldn't be with prejudice if there was something alleged that would be personal and the challenge that we're having in this case fundamentally is historically campaigning is personal it is not official and that's pretty well established but Donald Trump of course is arguing and his lawyers have been very successful and say well this is the head of state who is making that we have free and fair elections this isn't about Donald Trump the candidate this is about the head of the Executive Branch to make sure there is no widespread voter fraud whether it be in 2020 or some other time so that's the challenge that the prosecution and the defense are having is this election Integrity or is this campaigning because obviously the law is very different with respect to the two yeah in the new indictment on page seven Jack Smith says this that the defendant was on notice that his claims were untrue he was told so by those most invested in his reelection including his own running mate and his campaign staff um and I I'm somewhat certain that that is new language included in the indictment there that Jack Smith is alleging that Donald Trump while espousing these false claims about election fraud he knew that they were false uh and that's been the Crux of this indictment throughout the whole course of this case how can Jack Smith and his team uh prove that claim in a court of law here let's talk about Jack Smith's timeline though uh so it's a two trck timeline uh because he's have two cases in front of him here that he has brought one that he's trying Salvage in Florida as well after judge Canon dismissed it uh he made a filing to the 11th Circuit Court of Appeals just yesterday uh urging them uh to reinstate the classified documents case that he brought against former president Trump as well in the wake of Judge Cannon's dismissal so that is ongoing and then this is ongoing in DC here he's got a lot on his plate when can any of this be resolved if at all well if Donald Trump wins in November it will never be resolved because he can't be prosecuted a sitting president pretty well established under Department of Justice longstanding policy cannot be charged cannot be tried so all those cases go away so under the assumption that KLA Harris wins in November the question is what happens to these two Federal cases well in South Florida judge Kon pick up pretty surprising view of Jack Smith's appointment saying that he needed to be confirmed by the Senate now no other federal judge in this country has taken that view of special counsel appointments and they've been appointed for decades for instance Hunter Biden is being prosecuted in Los Angeles where I am next month by a special councel that was not confirmed by the Senate at least here in California he was the US attorney in Delaware but of course a Delaware prosecutor doesn't have jurisdiction here in California so that was a pretty surprising decision that is what's going up on appeal to the 11th circuit and we know that judge Canon has been reversed multiple times so there's the very real possibility that that case goes back and now judge Canon needs to decide the case not based on Jack Smith's appointment but whether president former president Trump was immune based on the Supreme Court decision like we're dealing with in DC and of course in DC judge Kon will make that ruling it'll go back up but importantly none of this will happen before the election so the election really is going to determine what happens with Donald Trump's criminal cases yeah and let's just talk about more hypothetical say Trump does win the election here uh is he is he in his right is it in his purview uh if he is the executive of the executive branch can he tell whoever he might appoint as his attorney general that he wants these cases dismissed can he do that has it been done before if not well it's never been done before but he can absolutely do that and it should be done based on long-standing President Jack Smith should dismiss these cases if Donald Trump is reelected and if not when Trump takes office he can appoint any attorney general he wants May Darin won't be there and he can fire Jack Smith so I think Jack Smith will see the writing on the wall if the election goes and Donald Trump's favor and both cases should be dismissed should be dismissed in pretty short order and I would expect the same thing to happen in Georgia as well even though it's a state case even though it hasn't been addressed the same legal analysis and logic would apply so there's a possibility the only case that Donald Trump has to deal with at least as far as criminal is that New York hush money case which of course is the least serious of all yeah speaking of New York we have a live picture there outside the Fox News world headquarters in New York Nema I think you and I are going to be talking on September the 18th when that sentence is expected to be handed down we know that Trump's legal team has asked the judge for a delay in the sentencing date haven't heard an answer on that question or a resolution on that question just yet but uh Neema it is fast approaching here it is and it was supposed to be even earli in September and it got pushed out so the judge can hear some briefing on this immunity issue I think in that case obviously there's no special counsil so we don't have to deal with that argument but really it comes down in immunity I think that's a very tough argument for Trump to win now there were some Communications with hopix and others that were part of his administration that arguably arguably shouldn't have come in based on the Supreme Court's decision but we're really talking about conduct an alleged Affair a payment some reimbursement the vast majority of which most people would say well it's personal right you're having an affair you're you're paying money to keep it quiet it's your personal lawyer how is this an official act so I think that's going to be the toughest argument for Trump's lawyers to win I think given the judge in that case how he's ruled so far judge Juan Maran I expect him to lose that argument I expect him to be sentenced I don't think he's going to get prison time or even home confinement we're likely seeing a a sentence of probation sometime in mid-september yeah it is very interesting you know uh you and I spoke so often in early spring and early summer about how we thought uh these legal cases would have a you know outsize impact on the 2024 election and my how the summer somewhat changed that calculus not only with uh Trump getting shot at that campaign rally in Butler PA but also President Biden withdrawing from the top of the ticket here so it's been quite an interesting year and we'll see what effect or what impact these cases have going forward only 70 more days to the election Romani as always thanks so much thanks for having me Andrew talk to you soon