EXPLAINED: Jack Smith's Supreme Court Hail Mary on Presidential Immunity

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Hey everybody, at the end of the Charlie Kirk Show, Julie Kelly gives us an update on January 6th and Will Scharf on the timeline of Trump's legal cases. Email us, as always, freedom at CharlieKirk.com. That's freedom at CharlieKirk.com. Get involved with Turning Point USA at tpusa.com. That's tpusa.com. Open up a high school or college chapter at tpusa.com. Email me, as always, freedom at CharlieKirk.com. And we'll see many of you this Saturday at AmericaFest. That's AmFest.com December 16, 17, 18, 19 in Phoenix, Tucker, Patrick Bet-David, Candace Owens, Glenn Beck. Use promo code Charlie to be there. It's going to change your life.

AmFest.com. Buckle up everybody. Here we go. Charlie, what you've done is incredible here. Maybe Charlie Kirk is on the college campus. I want you to know we are lucky to have Charlie Kirk. Charlie Kirk's running the White House, folks. I want to thank Charlie. He's an incredible guy. His spirit, his love of this country. He's done an amazing job building one of the most powerful youth organizations ever created, Turning Point USA. We will not embrace the ideas that have destroyed countries, destroyed lives, and we are going to fight for freedom on campuses across the country. That's why we are here.

Brought to you by the loan experts I trust, Andrew and Todd at Sierra Pacific Mortgage at andrewandtodd.com. I'll tell you, I called the president this weekend. We had an amazing conversation. He was in New York and I was telling him that our great event at Mar-a-Lago. And he said, what do you think about vice president?

Who do you think I should choose? I said, Tucker Carlson. It was warmly received. And I'm going to keep on. Would I lobby privately or publicly on the show?

I do private. There's no agenda. The agenda is the country. And so we're an open book. I said exactly that and we had a great chat about it. Okay, joining us now is Will Scharf, who should be Missouri's next attorney general. I'm going to do whatever I can to make sure that happens. Will is a great American.

He's terrific. Will, welcome to the program. Will, we've been gaming out this entire hour specifically on the lawfare deal.

You're you are on Trump's legal team. Is that right, Will? That's correct. Yeah. Yeah. Okay. So you can really speak from authority on this. Let me tell you my fear. And again, I am simply a layman.

I didn't go to college. Right. So I'm just looking at this as an outsider. My fear is that they're going to try to get him to be a convicted felon before, let's just say, July 4th. Walk us through the timeline as it stands and kind of catch us all up to speed here.

Sure. So I think it's very clear and has been from the start that the purpose of this DC case that they brought against him over so-called election interference is basically to railroad him, to force him to be in trial at the height of campaign season. The timing is essentially the point. So the judge there, District Judge Tanya Chutkin, set a trial date for early March. The day before Super Tuesday would be the first day of trial. What's happened, though, is there are very serious legal issues that that case raises. Probably most importantly, issues regarding presidential immunity.

The fact that a president, in our view, cannot be prosecuted for acts he took while he was president that fell even within the outer perimeter of presidential duties and responsibilities. So we took an appeal on that issue up to the DC circuit. And yesterday, Jack Smith's team sought to short circuit that entire process and bring the case directly to the Supreme Court. I saw that Jason Willock at the Washington Post posted on Twitter yesterday that that move makes it clear that the timing here is the point. That Jack Smith's team isn't acting in pursuit of justice. They're acting in pursuit of election interference. That their whole goal here is getting this case to trial while the presidential election is pending.

Unfortunately for them, these appellate issues are weighty legal issues that require, in our view, careful consideration by the courts. And I don't think the timeline will end up favoring them. I think that after we've moved through the DC circuit, a panel probably, an on-bank petition as well, and after we've, at the end of that process, moved through the Supreme Court, there's no way that March trial date holds. And this case is going to keep getting pushed further and further into the future. I think it's very unlikely. First of all, I don't think President Trump did anything wrong.

I don't think any fair court could convict him here. I think it's extremely unlikely that the scenario that you outlined ends up coming to a pass. And I think that that we're going to win on presidential immunity. I think we're going to win on a lot of these issues. We certainly should. So I'm optimistic. I believe President Trump is optimistic. I think we've got the right arguments.

We've got a great team and we're going to keep on fighting. OK, so kind of walk us. So let's just say absent, appropriate delays, which there should be. What is the current timeline? And then I have a second I have a second question as well.

So let's do that. Just to be clear, Charlie, you know, as you know, I was a federal prosecutor. I saw carjacking cases, armed robbery cases, you know, basic run of the mill violent crime cases dragged through the courts for years. So the idea that in one of the most important cases ever brought in the federal courts, that there would be this rush to trial within a few months, it's totally at variance with normal legal practice.

And it speaks to, as the president has consistently said, as President Trump has consistently said, it speaks to election interference being a key motivating factor here. So as of now, our view is that all proceedings in the district court are stayed while we litigate issues of presidential immunity in the higher courts. If the Supreme Court does not immediately take this case up, we would have appellate consideration by the D.C. Circuit if we if we lose the panel that that's appointed to hear that case rules against us, we can seek on bank review of that, which would mean that the entire D.C. Circuit sitting as one, all of the active judges would hear that case a second time. And if that didn't go well for us, we would be able to take the case up to the Supreme Court, filing a writ of certiorari or petition for a writ of certiorari and then litigating the case in front of the Supreme Court.

That process that I just laid out for you, under normal circumstances, could easily take years. Now, Jack Smith's team is moving to expedite at every opportunity, and that's truncating the timeline significantly. But even so, if the Supreme Court does not immediately take this matter up, or even if they do, we're looking at potentially a delay of many months.

And that's why I say we don't believe that that March trial date is going to stick. And the closer we get to the election, I think the worst the optics become for the Biden administration and Jack Smith to be pushing this thing to trial on such an expedited basis. So is the Trump legal strategy trying to appeal this now to the Supreme Court, the timing? Because there's been some news about the Supreme Court and or would that be more on overturning a conviction with presidential immunity?

No, so presidential immunity, it's the case with all immunities. You're not obligated to litigate a case where you're immune from prosecution and then address it on the back end. It's an issue that is called an interlocutory appeal. It's an appeal that takes place before final resolution of the case. So we've appealed presidential immunity up to the DC Circuit already. Jack Smith's team is trying to now short circuit that process by going straight to the Supreme Court. But during the pendency of those motions, while we're litigating this issue of presidential immunity, all proceedings in front of the district court, pretrial motions, discovery, all of that is supposed to be stayed, and we believe it will be stayed. So the longer this process goes on for, the less likely it is that President Trump goes to trial on any kind of time frame approaching what was originally set out in this case.

Yeah, and so the current timeline here, and people have to also remember there's this civil vector too, which takes up time and attention and money. There's the E. Jean Carroll civil defamation suit on January 15th. There's a pyramid scheme class action suit.

What in the fresh heck is that, Will? When you look down at the full list of cases against President Trump, I mean, the only answer is that this is a concerted effort of election interference. And the reason the left is pursuing him so hard is because he's the runaway leader for the Republican nomination for president.

I believe he's going to be our next president, all of this notwithstanding. But President Trump is facing now criminal prosecutions in four jurisdictions. As you said, you have the E. Jean Carroll case. You have this ongoing travesty in New York with Attorney General Letitia James's case. That's another civil case against President Trump and the Trump Organization. You have Blazing Aim, which is a civil case relating to January 6th that's now percolating up through the courts as well, which also actually deals with issues of presidential immunity. There's just a ton of litigation that's going on in the background here.

And when President Trump talks about election interference, what he's really pointing out is that while he should be out campaigning and making his case to the American people, he's instead being forced to, you know, sit in the courtroom and spend time and effort and money fighting all of these baseless charges against him. Will Scharf, you're running for the Attorney General of Missouri. And this ties into the work we're doing with President Trump, Charlie. I think now more than ever, conservatives need to be willing to stand up and fight for our country, fight for our values, fight for our principles. If we're not willing to stand up now, I don't think we're going to have another opportunity. I see our country slipping further and further away from founding principles, from our founders values. I think now is the time for conservatives around the country to stand up and make their voices heard. That's why I decided to run for attorney general.

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It's called 888-596-0155 or check out strongcell.com forward slash Charlie. Will, I want you to remind our audience how unusual it is for them to excel at the federal government to accelerate the timeline like this. It's obviously election interference.

And doesn't it just require a judge, any judges say, well, we'll do this in December or we'll do this in February of 2025. Why the rush? What explanation are they giving?

Yeah, and there really isn't a good explanation, Charlie. You know, when I was prosecuting, if a defendant asked for more time, we'd almost always give him more time. Here you have in both DC and Florida, wildly complex federal cases, millions and millions of pages of discovery, hunt potentially hundreds of witnesses. The idea that these cases should be brought on such an expedited timeline just never has made sense to me. As I said before in DC, the idea that you'd go to trial on that case in March, it's just, it's a very, very short timeframe. I don't think that trial date will end up holding. We're going to continue fighting on the appellate fronts. But it really just goes to show, I think, how committed these people are to taking down President Trump and to stop him from effectively campaigning for president.

It is truly something and remarkable. Talk about the gag order, Will. That's another thing on top of this. I know you argued it.

Give us an update there. Yeah. So a couple of weeks ago, we were in front of the DC circuit, my colleague John Sauer and I arguing over this gag order that was imposed by the district court in DC. We were in front of a panel of three Democrat appointed judges. We felt that we got the better of that argument.

The government was really put to the test in a very serious way. The DC circuit panel then significantly narrowed the gag order, said, for example, that President Trump could speak out publicly about Jack Smith, could speak out publicly about some of the witnesses involved in certain circumstances, some of the potential witnesses involved. We're looking at options now to potentially appeal that further. But I mean, again, what we have here is an effort by the Biden Department of Justice to impose a very restrictive gag order on President Biden's principal political opposition.

It's unprecedented in American history. We made the argument that that gag order amounted to an unconstitutional heckler's veto, basically holding President Trump accountable for the actions that third parties might or might not take in response to his speech, which is a big no-no in the context of the First Amendment. We think our arguments are very strong on those issues. And I hope that the courts end up vindicating us on that issue.

But in the meantime, it is worth noting that the gag order was significantly narrowed by this panel of the DC circuit. And, you know, we're going to keep fighting for President Trump's First Amendment rights. But so far, we're moving full speed ahead on that issue and all the others that we've discussed as well.

It's just remarkable. It's unprecedented lawfare, just completely and totally unprecedented. Final, final question, Will, if which I know you think is unlikely on the January 6th stuff, if they're able to land a conviction, is there any argument or superseding indictment that might be on the horizon to try to disqualify him from the ballot altogether? So the only way to disqualify a presidential candidate that's out there right now is this 14th Amendment argument. The idea that the insurrection clause, the 14th Amendment to the Constitution allows you to keep people off the ballot if they've effectively waged war against the United States.

This is a Civil War era, post-Civil War era enactment. Every single court around the country that has looked at that 14th Amendment issue so far has ruled for us. You have courts in Colorado and Michigan, courts not in deep red jurisdictions by any stretch, ruling that there's nothing to that argument. I believe that President Trump will win the primary. I believe that he will be on the general election ballot in every state in November.

And I believe he'll be elected. One other point that's worth making, in repeated polls of the American people, a great majority of Americans believe that these prosecutions are politically motivated. So even if you're right, and even if some sort of conviction is handed down in one of these cases before the election, I think the American people know what's going on here. And I believe that they view these cases, the polls show they view these cases as politically motivated and effectively as election interference.

So I don't think that any of this is going to end up being dispositive in terms of the general election next November. Will Scharf, we're behind you running for Attorney General in Missouri. All the great people in Missouri get behind Will. Keep fighting. Thanks so much, Will. Appreciate you, Charlie. Thanks for what you do.

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Full endorsement, patriotmobile.com slash Charlie or call 972-PATRIOT. Joining us now is Julie Kelly. Julie, who has been spot on with all of her predictions.

Julie, welcome to the program. I want to remind our audience back in the spring, we had so many guests come on our show say, oh, they'll never indict Trump, never indict Trump. And Julie very plainly said, of course, they're indicting Trump.

Of course. And she said they're going to do it on January 6th up and even more. The first question I have for you, Julie, is that you I don't know if you made a prediction yet, but you are concerned that you're seeing there might be a superseding indictment that could come down at any time against Donald Trump in regards to January 6th. Do you still believe that? And do you see evidence that that might be looming? I don't.

So I know that I've said that repeatedly. There's still a chance that he could do that. But now that he's gone to the Supreme Court in this highly rare, unusual step, trying to leapfrog over the appellate court, I know you guys have already discussed this, to decide about the presidential immunity decision, whether that should stand or not, it seems more it seems less likely now that he will file a superseding indictment, especially now that the Supreme Court also kicked down the road. The review of the 1512 C2 count in Trump's indictment and in that charge affects half of Jack Smith's indictment, and the Supreme Court refused to take up that.

They're reviewing it again. So if they grant cert what it's called, then they will look at how DOJ has abused that statute against not just Donald Trump, but more than 300 January 6th defendants. So yesterday, I will say Charlie was a very disappointing day out of the Supreme Court, not only not refusing to take up this 1512 C2 obstruction of an official proceeding statute issue and this very muddled appellate court ruling, but then coming back within hours of Jack Smith filing his petition and then demanding that Donald Trump respond to it by next week.

So let me let me dive into part of this here. So Jack Smith is rushing to SCOTUS, kind of rehash this. And because Will Scharf mentioned this, but just kind of I want to hear your quick take on Jack Smith's quick run to SCOTUS. Well, I'm sure as well was saying he's trying to leapfrog over the appellate court process, although he did ask for an expedited calendar there as well. The appellate court came back last night and told Donald Trump to respond to Jack Smith's other motion by tomorrow morning. So you've got two accelerated schedules happening at obviously the highest court and now the DC appellate court. And what this relates to is Judge Tanya Chutkin's order that came down on December 1st that denied the president executive immunity. She said straight out that presidents are subject to criminal prosecution. This is something that is not settled.

It certainly is not in the Constitution. I think Trump's lawyers made a very good argument that the way to deal with criminal acts in office is impeachment, which of course, as we know, he was impeached twice, including once related to the events of January 6th. So these are very thorny, unsettled, unchartered territory legal issues. So the idea that this should all be settled before March 4th, which is the trial date, is preposterous.

And so this is why Jack Smith is rushing. They want to stick to this March 4th trial date. Tanya Chutkin set an accelerated trial schedule, seven months between indictment and trial, usually January 6 cases, Charlie Go, 14, 18, sometimes two years between indictment and trial. She rushed the schedule and then guess what? She sat for two months on Trump's motion for immunity.

She sat on it for two months before she ruled on it. So this is a crisis of Jack Smith and Tanya Chutkin's creation. Of course, the Navy is trying to blame Donald Trump for this. And so now rushing to the Supreme Court in a very unusual step, bypass the DC appellate court, get a ruling on immunity and force this March 4th trial date down our throats and Donald Trump's throat. So Will Scharf, who's on the legal team, doesn't think the March date is going to stick.

Do you? Do you think that we're going to get a serious federal trial and maybe a conviction before the election? I mean, no, it doesn't seem likely that this March 4th trial date will stick. I mean, this is going to be an involved process, even if the Supreme Court kind of puts this on a fast track as well. You've got the holidays in between and then they have to take it to conference. And then you need, I believe, Mike Davis said for usually four justices to grant cert.

In this case, you need five. So then they would have a briefing schedule, oral arguments. How is that possibly going to happen with a decision handed down before March 4th? And of course, as you know, it's not just the March 4th trial date.

There's an entire schedule leading up to that. Jury selection is supposed to begin on January 9th, where draft jury questionnaires are due from both sides. Jury selection in person is supposed to really start in February as they start to weed out ineligible jurors. Then you're going to have a change of venue motion, obviously, that's going to be filed closer to the trial date. We have to see how she's going to rule on that. So you've got all of these things behind the March 4th trial date that have to be settled, have to be filed, have to be resolved. So I have to agree with Will. It seems impossible, this March 4th trial date. So then where does it go, Charlie? Do you push it to April, May that you get a conviction? What, when he's standing on the stage accepting the Republican nomination for president?

I mean, I'm sure they would love that. Yeah, this is this is where we are. So the the other thing I want to ask you about is defense attorneys have coined the term January 6 jurisprudence to describe the treatment received by more than one thousand two hundred defendants arrested so far. This carve out legal system involves the unprecedented and possibly unlawful use of a corporate evidence tampering statute. This is this is something obviously you wrote and you know very well.

Walk us through that. So defense attorneys call it January 6 jurisprudence. And this is a special set of laws and punishment that relate only that apply only to now we've got a caseload over twelve hundred Americans arrested and charged for the events of January 6. And so the corporate evidence tampering corporate fraud statute that I reference in my piece is this 1512 C2. The DOJ has abused this statute.

It was passed in the Sarbanes-Oxley Act in 2002. It had to do with the Enron Arthur Anderson accounting scandal and the shredding, allegedly shredding of documents there. But this Department of Justice has weaponized it, used it to criminalize political dissent and turn people who walked into the Capitol after even the joint session had recessed and charged them with this felony punishable by up to twenty years in prison. And as I said, this is one it's really two of four accounts in Jack Smith's indictment against Donald Trump. So it's critical that the Supreme Court take this up because the appellate court ruling really rendered three different opinions.

It was called the splintered ruling. So why is the Supreme Court delaying a decision on this critical issue? It's almost as critical as the immunity issue related to Donald Trump, because if the Supreme Court comes back and says, no, you have misinterpreted this statute, you are misapplying it.

It was never intended to be used this way. Then two of four accounts in Jack Smith's indictment goes away. He's going to go to trial on two vague, you know, trumped up, so to speak, trumped up charges, conspiracy to defraud the United States and conspiracy to keep people of their rights.

I mean, this is how fuzzy the other two counts are. So that's why you sort of see all of these different legal issues colliding. And again, this is a creation of Special Counsel Jack Smith and the Department of Justice. They have created really a legal and political crisis in this country. Now, they don't care. That's what they want because they'll do anything to get Donald Trump behind bars, you know, this summer, take him off the campaign trail.

So that's sort of where this mixed bag is right now. Have you seen any pushback from House Republicans to potentially hold these hold these forces accountable? Have you seen any sort of cross-examination or exposure? I'm certainly not feeling that. Well, I know that there was a letter sent, I believe, by Representative Luna.

I think Jim Jordan. There might have been another representative who sent something to Jack Smith's office asking for some sort of accountability. Look, I think he's far past when he was supposed to submit a one-year report detailing his expenses.

Of course, he was appointed in November of 2022. We have nothing really about his budget, how much he spent. We know that he's spending millions on security for himself and his family, but we don't know how much this investigation so far has cost, how much the trial proceedings will cost, and then what will happen after that, let alone all the accountability for what he's done. I mean, I think you reposted my tweet yesterday from another motion that indicated that Jack Smith took cell phones that Donald Trump and maybe a few of his advisors used in the White House. They extracted data from those phones to see when his Twitter application, his Twitter app was open.

What is that all about? I mean, and how can you just take phones used by the president of the United States without some sort of also appellate proceeding? It's probably under sealed proceedings. I'm sure this was another rubber stamp subpoena authorization by D.C. judges like Beryl Howell. So they've got all of this data. There's just no end to what Jack Smith and his team will go to to collect crazy evidence against Donald Trump.

And remember, not present it to the jury. This is what they're doing. They're presenting it to the American people. They need to restore the January 6th insurrection narrative that is falling apart.

So it's incumbent on Jack Smith. That's what he's using this trial for. And the government Biden regime is using this trial for to re-peace the January 6th insurrection incited by Donald Trump because most of America doesn't believe it anymore.

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Go to lower my drug prices dot com. Julie, give our audience an update. And we've talked about this before, how the drag net keeps extending that now people who did not enter the Capitol, who were hundreds of yards away from the Capitol, have now been arrested on federal charges for trespassing.

Give us an update. I mean, that has been the case, Charlie. There have been several defendants who did not go inside of the building who were just on the grounds who were charged with multiple offenses, including, as you know, Cui Griffin, who is the Cowboys for Trump leader, who is convicted in a bench trial of one trespassing charge. Well, that just went to the appellate court, too. And I'll tell you what the judges there sounded very skeptical about that conviction and wanted to know, pressing the government to explain how people who were outside on the grounds who arrived at 230 knew that the grounds had been restricted and the government, DOJ, had no good explanation. So that charge, or at least that conviction, could be at risk, too. But to your point, they are still rounding up people. There was another arrest announced yesterday, a couple, husband and wife, who were arrested and charged with January 6 misdemeanors.

Last week, they arrested a 65-year-old woman from Texas. Keep in mind, Charlie, this is the DC U.S. attorney, the man who is responsible for rounding up real violent criminals in the nation's capital, as that city descends into violent chaos almost every weekend. He has a crisis of carjackings in that city.

He finally held a press conference today to address it. Meanwhile, Matthew Graves, a DC U.S. attorney, who is turning away criminals, declining 67 percent of violent cases brought to him by DC police, refusing to prosecute those criminals. He is using his resources to instead hunt down nonviolent protesters for something that happened almost three years ago, who lived far outside of the city of Washington.

So that's the sort of double standard of justice that I think Americans are really frustrated and fed up with. And a lot of that starts with Matthew Graves, who is taking his marching orders from the Department of Justice. He said he wants to get to a total caseload of 2,000 defendants before he's done. And he's making headway on that almost every single day.

What number are we at right now? We're closing in on 1,300 defendants. And I'll tell you, Charlie, he is moving at a clip of almost one arrest every business day. He arrested and charged more than 20 individuals in November, and he's on pace to do the same in December, more than nearly three years later. Yet all of the violence in Washington throughout 2020, including prompting the lockdown of the White House, assaulting lawmakers and their spouses, and Trump supporters in the November, December rallies, all of those cases have been dropped by the same prosecutor. And yet Republicans, I mean, at some point you have to probably draw a line.

I mean, we're at one thousand three hundred and he's at one a business day. And these are ruining people's lives. And they're they're turning peaceful protesting into felonies. Julie, do you know of any other instances of people that have trespassed on the Capitol and they receive raids and arrests at airports? No, it's unprecedented. Every aspect of this, that's why they call it January 6 jurisprudence. It is entirely different set of laws and punishment, incarceration, pretrial detention, political prisoners, excessive prison sentences, terror enhancements for nonviolent offenders. That's why they call it January 6 jurisprudence.

It is a carve out legal system for people who protested Joe Biden's election and supported Donald Trump on January 6. Julie Kelly, thank you so much. Appreciate it. Thank you. Thanks, Charlie. Thanks so much for listening, everybody. Email us as always. Freedom at Charlie Kirk dot com. Thanks so much for listening. God bless.

For more on many of these stories and news you can trust, go to Charlie Kirk dot com. Ah, ho ho ho. Hey, what's wrong, Santa? Well, it's these elves. The new ones all feel entitled. They don't want to work their way up the ladder.

In fact, they hardly want to work at all. Then there's those social justice elves. They keep pointing out everyone's differences, dividing the elves and getting them all riled up. And don't get me started about the reindeer right selves.

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