When Jack Smith was named as special counsel less than eight months ago, he was given two massive tasks. One was to investigate Donald Trump’s mishandling of classified documents. That investigation has already led to the filing of 37 felony charges against Trump, and it may not be done. But Smith’s other task was arguably far more important: That’s the investigation into Trump’s attempts to overturn the 2020 election.
Not only is the special counsel looking into how Trump’s actions created the violence and destruction of Jan. 6, his team is digging into other aspects of his schemes after losing the election. That includes plans to replace the attorney general with a sycophant who would issue false claims about election fraud to the states, the effort to create some kind of pseudo-legal framework behind the theory that Mike Pence could overturn the election with the stroke of a pen, and even a plot to seize voting machines and place them under military control.
A grand jury has been hearing testimony related to these events for months, but in recent weeks the parade of figures coming before that jury seems to have slowed. However, an appearance before the Jan. 6 jury last week by Rudy Giuliani shows that the Washington, D.C., case is far from over. And it just got a big boost from a ruling by the Supreme Court.
On Tuesday, the Supreme Court issued a ruling in a case that tested the constitutional limits of state legislatures. Specifically, the case dealt with how the North Carolina legislature drew up a new map of congressional districts that gave Republicans a huge partisan advantage in violation of a provision in the North Carolina constitution. Stephen Wolf took a look at that ruling and its immediate results.
But there’s an even bigger issue behind this ruling than the already momentous issue of how congressional maps are drawn. The North Carolina case was a test of what’s been called the “Independent State Legislature Theory.” Under that theory, when the Constitution gave state legislatures the responsibility for conducting elections in the states, it ceded those legislatures unrestricted power so that they could conduct those elections unconstrained by any federal law, or any review by either the state or federal courts.
In the 6-3 ruling, with Clarence Thomas, Neil Gorsuch, and Samuel Alito coming down on the “sure, go ahead and screw democracy” side of the decision, the court said state legislatures do not have unconstrained power to decide elections as they see fit, are subject to existing state and federal laws as well as state constitutions, and can be checked by state or federal courts.
For Smith, that decision could be crucial when it comes to possible charges against Trump in connection with the attempts to overturn the 2020 election.
As The New York Times reports, Giuliani appeared last week for a “voluntary interview” before members of Smith’s team, who are investigating attempts to overturn the 2020 election. That interview reportedly took place under the terms of a “proffer agreement.” A typical proffer includes an agreement to not charge the person being interviewed on the subject of the questions, provided that person answers fully and provides accurate information. In many cases, proffers include an agreement to plead guilty to limited charges in exchange for partial immunity, or for leniency in sentencing recommendation. However, it’s not clear if this is true of Giuliani’s appearance.
Giuliani was reportedly asked about three specific areas in Trump’s efforts at reversing his loss. One was the allegations made by former Trump attorney Sidney Powell, whose flood of claims included Italian election satellites and dead Venezuelan dictators, and a meeting Powell attended in the Oval Office in which the military takeover of the voting machines was proposed. Another focus of questioning was a second meeting, this time at the Willard Hotel, where Trump advisers including Steve Bannon and Boris Epshteyn joined others to discuss strategies in advance of Jan. 6.
But the primary area of questioning was directly related to that SCOTUS decision handed down on Tuesday.
Prosecutors working for Mr. Smith asked Mr. Giuliani about a plan to create fake slates of pro-Trump electors in key swing states that were actually won by Mr. Biden, one person familiar with the matter said, speaking on the condition of anonymity to discuss an ongoing criminal investigation. They focused specifically on the role played in that effort by John Eastman, another lawyer who advised Mr. Trump about ways to stay in office after his defeat.
Had the Supreme Court taken an extremist view of the independent state legislature theory, it seems entirely possible that courts might rule that what Trump was trying to do with the fake electors was just fine. After all, if legislatures have unchecked authority to deal with elections, who’s to say they can’t just appoint those electors for anyone, no matter what the voters of their state say?
At the very least, a ruling in the other direction on this issue would have opened up new avenues of appeal and made Smith’s job in charging Trump, Eastman, the fake electors, and others involved in this effort much more difficult.
Now that the ruling is in, the path for going forward on the other case against Trump is much smoother. That prosecutors engaged in this proffer agreement with Giuliani is a good sign that they are currently filling in the final blanks in their knowledge and confirming other testimony. A similar proffer agreement is reportedly being worked out with Michael Roman, who was directly involved in recruiting and assembling the slates of false electors.
It seems clear at this point that this fake elector scheme, which was ultimately meant to bolster Eastman’s fiction about Pence being able to recognize any electors he wanted on Jan. 6, is a focus of Smith’s investigation. However, as the questioning of Giuliani shows, it’s not the only area still being examined.
It’s likely that Trump, Bannon, Powell, Eastman, and others who may include Giuliani and Roger Stone, could face charges related to lying to the courts about election fraud, incitement to violence on Jan. 6, obstruction of justice both before and after Smith’s investigation began, and a conspiracy against the United States involving the plot to overturn the election.
With the Supreme Court decision in hand, expect Smith to march ahead with all of it.