There is no way the case is getting very far before Election Day.
There is no way the case is getting very far before Election Day, and the Court will likely see the superseder as insufficiently attentive to its Trump ruling.
B iden-Harris Justice Department special counsel Jack Smith has superseded the 2020 election-interference indictment of former president Donald Trump. The new indictment (or the “superseder”) was unsealed today after having been returned by a federal grand jury in Washington, D.C., where District Judge Tanya Chutkan is presiding over the case.
The superseder is in reaction to the Supreme Court’s July 1 decision regarding Trump’s claim of immunity from prosecution (Trump v. United States). The Court held that presidents (including former presidents) are presumptively immune from prosecution for all official acts within the broad ambit of their authority and absolutely immune for acts within executive power as set out in Article II of the Constitution. Derivatively, there is evidentiary immunity: Prosecutors are forbidden from using evidence of official presidential acts to prove crimes that are based on private (or nonofficial) conduct.
I’m still poring over the superseder, but it does not appear that Smith has ceded much ground. Trump is still charged with the same four crimes — conspiracy to defraud the United States, a civil-rights offense, and two counts of obstructing Congress. The obstruction charges are notable because in another late-term ruling, Fischer v. United States, the Supreme Court ruled that the obstruction statute at issue is not applicable to the Capitol rioters. The Court reasoned that the statute relates to the spoliation of evidence to be presented at an official proceeding, not to violent conduct that prevents the proceeding from happening in the first place.
The obvious, major change in the superseder is that Smith has dropped the allegation that Trump used his control over the Justice Department to further his alleged crimes. In general, the Court majority in Trump laid out principles for the lower courts to apply in determining which acts were official and at least presumptively immune. But the Court went further regarding Trump’s directing his DOJ subordinates to exercise executive law-enforcement powers. This, the majority definitively asserted, implicated core presidential acts and is thus immune from prosecution. Consistent with Smith’s abandonment of this theory, the superseder omits former Justice Department lawyer Jeffrey Clark from the unindicted co-conspirators referred to in the indictment. (In the original indictment, Clark was “Co-Conspirator 4.”)
As I’ve previously detailed, Judge Chutkan tried to get the case up and running again immediately after the Supreme Court returned jurisdiction to her. She had not been permitted to act on the case when the immunity issue was on appeal. But Smith asked for a delay, until this Friday (August 30), while he and Justice Department officials studied the immunity ruling. Everyone needed to get on the same page because the ruling is critical to the DOJ not only in connection with the Trump prosecution but also in the long term. One assumes that, post-lawfare, DOJ will return to its more familiar role of defending presidential action. The quandary, then, is that any contention by Smith that Trump should not be immune for certain acts — or, more to the point, that his presumptive immunity for some official acts can be overcome by other considerations — could set precedents that will weaken DOJ’s defense of future presidents.
In our podcast last week, I opined to Rich that Smith could be using the delay to supersede the indictment in order to narrow the case against Trump. Doing so would lighten the burden on Chutkan to carry out what the Supreme Court instructed was the trial court’s first duty — to exactingly review the charges in order to sort out official from nonofficial (or private) acts. (There is no immunity for the latter.) It is essential that this task be performed early because immunity claims are among the few issues in federal criminal cases that are appealable pre-trial.
I also anticipated that Smith would do something he has not done, at least so far: Use the occasion of filing a superseding indictment to charge some or all of the six unindicted co-conspirators previously identified. I theorized that Smith had not indicted these people — mostly lawyers — because he was trying to push the case to trial prior to Election Day. Indicting multiple defendants would slow up the works, considerably increasing the amount of pre-trial litigation. That would have made a pre-election trial unattainable. As it turned out, the immunity litigation rendered it impossible to have a pre-election trial anyway; consequently, with time no longer of the essence, I suspected Smith would add new defendants in a superseder. He has not done so, and perhaps he has decided not to. Given how aggressive he is, I confessed to being surprised.
Other than the removal of allegations regarding Trump’s consultations with Justice Department officials, the case laid out in the superseder largely mirrors the original indictment. Smith contends that Trump knew that his claims of election fraud were false and that he schemed with his co-conspirators to obstruct the federal-government function of certifying the election of a president in four ways: (1) using the false fraud claims to pressure state legislators and election officials to change states’ election results; (2) the so-called fake-electors scheme; (3) the attempt to enlist then–vice president Mike Pence to exploit his “ceremonial role as President of the Senate” at the congressional certification proceeding to invalidate the electoral votes cast for Biden in contested states; and (4) seizing on the opportunity presented by the Capitol riot to increase pressure on members of Congress to delay certifying Biden’s victory.
There are four interesting aspects of this.
First, Smith clearly maintains that there is a bright line between a president’s actions as a candidate, which the prosecutor presumes to be private and nonofficial, and his official actions as chief executive.
Second, notwithstanding the vice president’s key role in the executive branch, Smith insists that there is a bright line between that role and the VP’s legislative role as president of the Senate. In this instance, the VP’s relevant legislative role was to preside over Congress’s certification proceeding. In Smith’s view, the Constitution gives the president no proper role in that proceeding. Besides that, Trump was a candidate, so Smith theorizes that his actions should be seen as private and thus not grist for immunity claims.
Third, the fake-electors scheme — i.e., the Trump campaign’s arrangement of alternative slates of electors (Trump electors) that would theoretically supplant Biden slates in contested states if those states were persuaded to reverse their popular-election results — had a very interesting history in the proceedings. The Trump legal team conceded at oral argument before the Supreme Court that the fake-electors allegations constituted private conduct. Nevertheless, in the majority opinion, Chief Justice John Roberts (writing for Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) did not accept this concession (and suggested that it was inconsistent with other arguments advanced by Team Trump). The chief justice hypothesized that the fake-electors scheme, as alleged, could implicate official presidential acts. By contrast, Justice Amy Coney Barrett, the sixth vote in favor of the immunity ruling, parted company with the other justices, opining in her concurrence that the fake-electors scheme seemed certainly to be based on nonofficial acts.
The five-justice majority opinion did not conclusively say that Trump’s actions in connection with the fake-electors scheme were official, just that they could conceivably be. The question was left for Judge Chutkan to analyze (guided by the majority’s inchoate views). Justice Barrett’s take on the matter, while not conclusive, seemed firm (and, indeed, it was she who adduced from Trump’s lawyer, John Sauer, the concession that the behavior was private). Smith obviously figures he can win this one when it gets down to brass tacks.
Moreover, Smith clearly believes that the fake-electors scheme is his way around the aforementioned Fischer ruling on the obstruction statute. Smith intends to prove that the alternative elector slates manufactured documents misrepresenting themselves as the legitimate electors. Set aside that there are reasons to doubt that allegation. For present purposes, the point is that Smith has concluded that the fake-electors scheme gets him around both the Trump immunity ruling and the Fischer obstruction ruling (because the scheme was about false evidence submitted to the proceeding, not about preventing the proceeding from occurring).
Finally, the riot evidence, to my mind, presents the same problem in the superseder as it did in the original indictment. Smith has not charged Trump with any crime of violence, much less alleged that he either incited the riot or had some other criminally actionable role in it. (We’re not talking about political or moral culpability: This is a criminal case.) The theory about how Trump capitalized on the violence in order to further the alleged fraud conspiracy is a transparent attempt to place before the jury, through the back door, what Smith can’t prove — namely, the suggestion that Trump is criminally responsible for the violence. That is extraordinarily prejudicial. Wholly apart from immunity issues (and Roberts was pointed in urging that a president’s communications with the public, including provocative speeches, are often official acts, which are presumptively immune), there is a strong defense argument that the riot evidence must be excluded in a case in which the charges are not violent crimes.
My sense, at first blush, is that the Supreme Court would see Smith’s superseder as insufficiently attentive to its Trump ruling. The prosecutor’s patent conceit is that Trump’s presidential acts as charged — in particular, his communications with Pence and with state legislators and officials — are at best only arguably official. Ergo, Smith’s reasoning goes, any presumption of immunity can be overcome by evidence that these acts principally served Trump’s interests as a candidate and not his duties as president.
To the contrary, the Court majority (sans Barrett) approached the matter from the opposite direction. Roberts made clear that the Court’s default position was that official acts of the presidency are immune. The majority said that core executive acts are absolutely immune; with respect to other official acts, the majority explained that, at this preliminary stage of the proceedings, it did not need to go any further than holding that such acts are presumptively immune. Nevertheless, the majority elaborated that, at a later, more developed stage of the proceedings, it might find that those acts are absolutely immune, too.
That is to say: While Smith intimates that presumptive immunity is far from an insuperable obstacle for prosecutors, the Court intimated that where there is presumptive immunity, there is probably absolute immunity.
Furthermore, I believe the most significant part of the majority opinion — because it deeply discourages future partisan lawfare crusades — is that prosecutors may not examine a president’s motives for performing official acts. If an action is ostensibly official, presumptive immunity cannot be overcome by claiming that a president had a corrupt purpose in taking it.
How does that affect the superseder? Well, presidents always have legitimate reasons to consult with vice presidents. And implicit in Smith’s charging of a civil-rights crime in this case (i.e., interference with the right to vote) is the stubborn fact that there is a federal law-enforcement interest in ensuring that elections in the states are lawfully conducted. Consequently, presidents — even if they are candidates — have legitimate presidential reasons to consult with state legislators and election officials regarding possible election fraud.
Smith, I believe, is suggesting that Trump’s ostensibly legitimate communications with his vice president somehow lose their status as official acts because, Smith alleges (on strong evidence, to be sure), Trump’s motive was corrupt. Similarly, Smith is intimating that Trump’s corrupt motive also strips of immunity his ostensibly legitimate communications with state legislators and officials. Even if Smith can convince the Obama-appointed, Trump-hostile Chutkan of this theory, it strikes me as defiant of the Court’s majority opinion in Trump.
In any event, we are back to square one. Trump will need to be arraigned on the superseding indictment. Judge Chutkan will now know that she must quickly examine the new indictment and decide which allegations implicate official acts. Whatever ruling she makes will be appealed. There is no way this case is getting very far before Election Day — or even before the inauguration of a new president on January 20, 2025.
What happens by that point, including whether Jack Smith still has a job, depends on whether we have a Trump-Vance DOJ or a Biden-Walz DOJ.