In their ruling on immunity, the six right-leaning Supreme Court justices found that a president’s “official” conduct is off-limits to prosecutors. That means someone — Donald Trump, for example — can order his underlings in the Justice Department to break the law, such as trying to overturn an election they know was free and fair, without anyone ever being able to accuse him of a crime.
The July ruling by the nation’s highest court was seen as a death knell for the cases against the former president, as the conservative majority had effectively legalized “criminal and treasonous acts,” as liberal dissenter Justice Sonia Sotomayor argued. One consolation was that special counsel Jack Smith could at least present all of his evidence in the court of District Judge Tanya Chutkan in Washington DC. This judge had been appointed by former President Barack Obama and would decide whether and what evidence would meet the Supreme Court’s new standard.
But Smith, who has accused the former president of conspiring to defraud the United States and obstruct the certification of the 2020 election, decided instead to start over himself. After empaneling a new grand jury, Smith on Tuesday presented a new 36-page indictment against Trump that retains the same core allegations but presents them in a new context: They were criminal acts committed by the former president not in his official capacity but as a private citizen in the context of a public campaign for office.
“Even the first paragraph of the indictment now refers to Donald Trump not as the 45th president of the United States, but as a candidate for president in 2020,” noted Barbara McQuade, a former U.S. attorney who teaches law at the University of Michigan. In an appearance on MSNBC, she predicted that Trump’s legal team would surely label everything he did while in office as an “official act.”
But McQuade argued that Smith effectively purged the original 45-page indictment of any conspicuous official conduct. The special counsel now emphasizes, for example, that Trump’s speech on January 6, 2021, took place at a privately funded campaign event – and that the ex-president, whose legal team organized a conspiracy to recognize “fake electors” from states like Arizona and Pennsylvania, never played an official role in certifying elections at the state level.
“I think this is the right way to go,” Ty Cobb, former White House counsel under Trump, told CNN, describing the new indictment as a “haunting document” that “makes clear the crimes that Donald Trump actually committed.” Smith wisely chose to avoid the moral victory of what legal experts had called a “mini-trial” and to publicly argue about what might be left of the previous indictment, Cobb said. But that also guarantees that there will be no trial of any kind before the presidential election.
“It’s going to be slow from here on out,” Cobb acknowledged. “His lawyers will use a lot of delaying tactics,” he said, but it’s unlikely the case will go to trial before November.
By reducing the original charges, Smith has also made it more likely that the case will even go to trial.
The appeals by Trump’s defense team could ultimately bring the case before a sympathetic Supreme Court majority, which may decide to expand its definition of official conduct. But Smith did at least strike out the most obviously problematic allegations: namely, that Trump conspired with a Justice Department lackey, Jeffrey Clark, “to use the Justice Department to launch sham election fraud investigations and to influence state legislatures with knowingly false claims of election fraud.” Since such conduct is now apparently perfectly acceptable for presidents, it was struck from the latest indictment, even though the underlying charges remain the same.
Norm Eisen, a senior fellow at the Brookings Institution and a CNN legal analyst, said that in Smith’s latest filing, “the cuts are more noticeable than the additions.” But in light of the Supreme Court’s decision, those cuts make the case all the stronger.
“I don’t think you can criticize Smith’s efforts to weaken the charges,” Eisen said. “I think he has strong cards – and he played them.”
Read more
about Trump’s criminal proceedings