Special counsel Jack Smith has revived his classified documents case against Donald Trump. But why is he doing this so close to the election? Will the Supreme Court's immunity ruling apply here? And what would happen if Trump wins the election from prison? Former U.S. DoJ Assistant Attorney General and Center for Renewing America senior fellow Jeff Clark joins Glenn to break it all down: “I would not be surprised if [this judge] sentenced President Trump to prison.” But he also explains why he believes the American people will see through the Left’s attempt to “criminalize politics” and realize that we have become a banana republic.

Transcript

Below is a rush transcript that may contain errors

GLENN: Jeff Clark, he is a senior fellow at the center for renewing America. And he knows this case, quite well.

The case against Trump. The latest indictment filed against special counsel Jack Smith.

Jeff, I have been trying to understand this story.

It's very complex. Can you just break it down for dummies, like me?

JEFF: Glenn, thanks for having me.

And, you know, you're definitely underestimating yourself, Glenn, but hopefully I can help the audience to understand the case.

GLENN: Okay.

JEFF: So, look, obviously this case was filed a way back.

And it's resulted in several important decisions, first as the district court, and then in the DC circuit, holding that President Trump was not immune.

You know, they tried to last that argument out of the lower courts, especially with this ridiculous SEAL team six hypothetical.

The idea that President Trump could order Seal Team Six to assassinate his political rivals.

And so the argument goes. You know, because that would not make any sense.

Therefore, he can't have any form of immunity. And I always thought that hypothetical was totally ridiculous, when the case eventually reached the Supreme Court. In a case called Trump v. United States, which was decided by the Supreme Court. Six to three, most of it, on July 1st of this year.

GLENN: Right.

JEFF: They gave that argument, short trip too. And they held, consistent with the fact, that every branch of government, has some form of immunity. That the president of the United States, and the one that was just applied to Donald Trump, it was applied to all presidents of the United States. Have to have, you know, a set of immunities. And the immunities they decided that he had, were basically a -- in a trichotomy.

So the first tier is that the president exercises his core executive powers.

You know, the things that are at the heart of being president. He is absolutely immune from those.

Full stop. Then second, per anything else that he does. Which is not within his core powers.

So that would include things like speaking, using the president's bully pulpit.

He's immune to the outer boundaries of his office. As long as it has the nexus to his official duties, which a lot of things do. And that there he has presumptive immunity. And in order to overcome it, you have to show that it would really make no impingement or inroads into the executive power. You know, to -- to be able to pierce that immunity. So that's also a very strong form of immunity.

GLENN: But that would be something like he's saying, you know, WWE is real. And somebody sues him. And says, it's not real.

It has nothing to do with the presidency. Right?

JEFF: Exactly right. So it certainly -- to my mind, let's take the speech, that he gave, you know, outside the -- the White House. On January 6th. He was clearly talking about matters of public concern, which the president can express himself on. And I think that that is presumptively immune. And I think to tell a president that he could not set out his views about an election, would be an inroads into the presidency. And therefore, he would also be immune for that.

GLENN: Yeah.

JEFF: So the left category, and the trichotomy is a category for which a president would not be immune, Glenn. That's the category of -- of an unofficial act. An act in a private capacity.

And so, after the Supreme Court's decision on July 1st, you know, it -- it kind of goes down each step. It steps down to the Court of Appeals level.

And they remand it back to the district court to Judge Chutkan.

And then Judge Chutkan started to set proceedings. More -- more on that in a minute.

And then what's ultimately come, once she now has jurisdiction back in the case, is that Jack Smith was off to the side, working with an entirely different grand jury, and he got this superseding indictment that came out yesterday.

And in -- in a phrase, what that indictment is, you know, new indictment. Meet the old indictment. You know, it's just the same as that old indictment.

He's just reformulated to try to make it consistent with and fit everything into the third box.

The box of everything President Trump did. That he had indicted before.

The first time. Is actually -- as opposed to a set of official acts.

And therefore, Jack Smith argues, he's not immune.

GLENN: So are they doing this, to smear him yet again. So late in the campaign.

Or is this a plan just in case he wins, they think this will keep him out of office?

JEFF: I think, Glenn, that they're doing it for all of those reasons. Right? Because they absolutely want to block him any way they can.
So this is election interference. There's no way you should be issuing a new indictment like this, using a new grand jury.

This close to a major presidential election. Especially --

GLENN: Correct.

JEFF: And it also shows me that this was being concealed. So what happens is that the court was told.

Because it was ready to go. Trying to set deadlines to try to march back toward a trial.

And Jack Smith made a filing. The last couple of weeks. Saying, no. No. No. Hold on. I need more time.

We're doing consultations inside the Justice Department.

Well, I'm sure they were doing consultations inside the Justice Department. But that's not the real reason. It's now clear, that the real reason is that he was actually in secret grand jury proceedings, getting this superseding indictment.

GLENN: Jeez.

JEFF: And the media, right? The media has been all over, watching the DC courthouse.

I mean, back in the real height of this, a year ago, you know, no one could walk into the courthouse, even if it was for an entirely different reason.

And not have the media report X, Y, Z. You know, this person went in. They must be going to the grand jury. Or there was speculation. But for this proceeding, for some reason, it surprised someone.

All the mainstream media, purported to say, well, Jack Smith was just consulting inside the Justice Department.

I think that that was essentially running a cover story for the fact that they were conveniently not -- purporting not to watch the courthouse.

Because they would have seen the prosecutors, regularly going to the grand jury to get this new indictment. And yet there was entire radio silence on that, until the surprise of yesterday.

GLENN: So what is supposedly new in this one, that changes the ground?

JEFF: It's not. It's essentially just a reformulation, right?

So the original indictment started out by saying, you know, Donald Trump, president of United States. You know, from -- from these dates, to candidate Trump.

So everything has been reframed. In the light of trying to fit it into the third box of being a private unofficial act.

GLENN: Person.

JEFF: Yeah. And otherwise, it's the same. It's the same four counts. There are -- even, you know, particularly remarkable to me, Glenn. Is not just that they have the -- trying to repackage the allegations, right? To go against Trump in his private capacity.

But the fact that two of the allegations were to this statute -- 28. I'm sorry. 18USC1512.

And that statute went to the Supreme Court, also this past term, involving the January 6ers. And the Supreme Court decided that -- that 1512C2, about obstruction with official proceeding, which I'm sure you and many of our your listeners would have heard of. You know, a statute, that really, they stretched to try to apply to January 6th. Even though they didn't. The Supreme Court held, that it did not apply to the January 6ers. And it remanded.

So, you know, Jack Smith has never said aye. He's still using 1512. Many commentators thought that after the Supreme Court's Fischer decision, that's the one about 1512C2, that he would drop the 1512 counts. And he would just go with the conspiracy counts.

Two conspiracy counts. There's 118USC371, conspiracy to defraud the US.

And then the second conspiracy count is a conspiracy against civil rights. But, no. He's using exactly the same four counts that he used before.

That's why I say, you know, the new indictment is really the same as the old indictment.

GLENN: I have to tell you, I don't think the Rosenbergs went through this kind of trial and tribulation. That Donald Trump. I've never seen anybody treated like they treat Donald Trump.

Never. What -- what the courts have done to him, what the prosecutors have done to him, in these cherry-picked courthouses and districts is absolutely obscene.

And I -- I would love to them your point of view, Jeff. I think they will put him in jail in September.

JEFF: Well, I'm actually, Glenn, making preparations to go up there, to be in Judge Merchan's court in Manhattan, on September 18th if the sentencing goes forward.

Look, two days before that time, on September 16th, Judge Merchan is supposed to issue his decision about whether the Supreme Court's immunity decision, Trump v. the US, that I've been talking about.

Whether that essentially requires a new trial to be granted. And I don't see how it couldn't possibly -- you know, you could come to any other conclusion, to the fact that it requires a new trial. Because President Trump is immune for his official acts. And there's even, in addition to the three tiers of immunity that I've described to you.

The Supreme Court created a new exclusionary rule, and said that, in terms of liberation inside the executive branch, are -- are protected. And they cannot be presented in court, as evidence against the president. And so the Alvin Bragg prosecution, it presented precisely such prohibited evidence. It had Hope Hicks in the Oval Office, talking to the president. And testifying about various things.

The jury heard that. And you can't unring that bell. They produced a verdict, based on hearing that evidence.

Alvin Bragg is trying to argue. Oh, it's all harmless error. Right?

We would have gotten that, even if we hadn't presented that evidence. Well, who knows? No one knows that. And I don't believe it. And so he needs a new trial.

So I predict, sadly, you know, for the same reasons you say that the lawfare is just so intense and unprecedented against President Trump. And it really is a dagger at the heart of the republic, that I bet, you know, Judge Merchan is going to go ahead and deny the unite-based motion for a new trial. And then he will do the sentencing. And I actually would not be surprised if he sentenced President Trump, to prison.

And maybe he tries to, you know, soften it a little bit at the end. Just by saying, this sentence wouldn't begin to run until after the election, or something like that.

Or if you really wanted to go full bore, right? You can say, no, you're remanded into custody immediately. Or you're remanded into home confinement immediately. He has a lot of different options.

GLENN: Oh, my gosh. I have to tell you, I think the American people will lose their mind.

Both Republican and Democrat. And especially I think independents. I think there are a lot of people who are sick of this. And they will see, this is a banana republic.

JEFF: I agree. It's already gotten to a banana republic level in terms of the level of lawfare directed at President Trump, at myself.

GLENN: Right.

JEFF: You know, at Steve Bannon, and Peter Navarro. You know, all of my folks down in Georgia, with Fani Willis.

GLENN: It's crazy.

JEFF: Now they have a new case out in Arizona, which they're trying to press on. You know, it's relentless.

It really is something that is trying to criminalize politics. And criminalize the ordinary operations of laughter. And pretend that Donald Trump was the chief executive of the United States.

That he -- you know, some unprecedented threat, that requires a level of treatment, that no one has ever gotten before, in the history of our country.

Just take, Glenn, the Mar-a-Lago raid. Right?

What did they do with Vice President Pence and President Biden? They negotiated an agreement to go and search through their -- their homes, right? But did President Trump get that treatment?

No. He got a jackbooted raid. With armed agents. That wouldn't even show the president's lawyer, Christina Bobb at the time, the warrant initially, until she basically had to pry it out of him.

GLENN: Would you hold on just a second, Jeff?

Because I have to take a 60-second break. And then when we come back, I would just like to know, what happens if he go to jail? Can he be president of the United States?

How would that work? Does Secret Service go with him?

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From the Center for Renewing America, he's the senior fellow there. Also, former US DOJ Assistant Attorney General Jeff Clark is with us.

So if they put him in jail, can a president be in jail?

If he -- let's say he wins the election. But he's in jail. What happens?

JEFF: So there are two periods, right? One would be a period, prior to inauguration. There to answer your question, right before the break.

You know, the Secret Service would still protect him.

And, you know, indeed, Alvin Bragg had been talking to the New York jail system, about trying to make accommodations for that.

And then in the period after he's inaugurated, then I think all of the -- any kind of imprisonment would have to be ended for suspended.

It would be what lawyers call preempted by the Constitution since he would be the dully elected and inaugurated president of the United States.

He can't be kept from exercising those functions by a state conviction.

GLENN: That is absolutely unbelievable.

I mean, I don't think our Founders ever -- they -- I don't think they ever saw something like this happening.

I mean, you know, our -- our checks and balances are so far out of whack. And the administrative state is so strong now.

That, you know, almost anything can happen. It is really crazy. Jeff, thank you. Go ahead.

JEFF: Thank you. Yeah. I was going to say, you're absolutely right. The republic is hanging by a thread at this point. Hopefully Judge Merchan will come to his senses. And I think the Supreme Court is always in the background to make this all come out right, like they did in the Trump immunity case on July 1st.

GLENN: Hmm. Jeff Clark, thank you very much. I appreciate it.

You can follow him on Twitter, @JeffClarkUS. @JeffClarkUS. Thanks, Jeff. Appreciate it.

I mean, can you imagine, Stu?

STU: Yeah. I was thinking about that, as you were playing out the situations.

What if -- you putting them in jail, would send a message.

I think, as you pointed out. I think would backfire on them.

Could you see them do House arrest?

So he can't campaign anywhere.

He can't do any rallies. They put an ankle bracelet on him. I don't know. That one, I could see.

Especially if they're losing. I think the more -- the more dire they feel their situation is. The more likely that happens. That he goes to prison.

Because, you know, they will see this as, well, I mean, we've got this other card to play. Why not give it a shot?

We're losing. Right now, I don't think they feel like they're in that situation. I feel like they think they're winning, and why would they shake it up?

GLENN: I have to tell you though, I think if Donald Trump was under House arrest and he couldn't leave his house, first of all, he could do video from his house. I'm sure.

And there would be people like me. You know, I would be willing to take a hiatus and go campaign for the man, if he couldn't campaign himself. And not -- and not because, well, he's a Republican or anything.

Because --

STU: It's wrong.

GLENN: -- this is an American that has been wronged. And we all have to stand up for it.

I mean, they are out of control.

STU: That's going to be fascinating to see.

GLENN: Can you imagine if they win?

Oh, my gosh. Can you imagine how much trouble we're in if they win, Stu.

I mean, everything we've ever talked about, is happening right now.
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As Jeff just said, a republic hangs by a thread. Who is going to rush in and save it?

Well, I will tell you, it will only be good and godly people.

Because it's got to be people of merit, that are trying to find favor in the eyes of God.

And say, we will be a fruitful nation. And we will bear good fruit, otherwise, he will curse us and we will whither on the vine. Quickly.