Jack Smith’s Damning, Political, and Legally Flawed J6 Filing against Trump

This is not a legal exercise, it’s a political one.

I n last night’s column, I discussed the court-endorsed publication of the outline of Biden-Harris Justice Department special counsel Jack Smith’s evidence against former president Donald Trump. Reading the 165-page document, I’m of two minds, which is natural because Smith’s proffer has two purposes, political and legal.

The Politics of the 2024 Election

First, the submission is thorough and damning. No surprise there: Smith’s indictment of Trump in the so-called January 6 case was thorough and damning. (The indictment was superseded last month.) Trump’s comportment between Election Day 2020 and the Capitol riot was appalling; an experienced prosecutor’s comprehensive description of it was bound to be compelling; after all, Smith is portraying his proof in the best possible light, with no judicial admonition that a prosecutor’s summary allegations are not evidence, no cross-examination, and no opportunity for the defense to offer testimony and documents that might put in less incriminating context the bits Smith has mined.

A prosecutor’s case, like a football team’s game plan, never looks better than it does on paper, before it experiences first contact with the opposing team.

If the purpose of the publication of Smith’s proffer were legal, it would be of only marginally more moment than the splashy indictment. Even the Justice Department customarily concedes in its press releases that charges are not proof of anything and that the accused is presumed innocent unless and until a jury finds him guilty beyond a reasonable doubt of one or more of the charges. Since that’s the American way, it is ingrained in us not to take even ostensibly well-founded charges at face value. We often know, based on press reporting, that the accused is probably guilty — such that, if the crime alleged is heinous, we want the accused detained pending trial. But even with hardened criminals and terrorists, we believe an accused is entitled to his day in court — to a trial, to an opportunity to confront witnesses and present his defense. To describe the case on paper, no matter how comprehensively, is not to establish guilt. That can happen only at trial.

Moreover, if Smith’s proffer were a real legal exercise, Judge Tanya Chutkan might well have kept the evidence sealed. In a normal case, prosecutors do not want to publicize their proof prior to trial. Especially if they’ve been claiming that the defendant is a dangerous threat to democracy, they want to hold the evidence and identities of witnesses close to the vest — in order to safeguard the integrity of the process. And in a normal case, a submission such as Smith’s, and the judge’s decision to broadcast it publicly, would be seen as an attempt to prejudice the jury pool against the defendant.

As a rule, we don’t get to see all the evidence until the trial begins. That’s intentional: It ensures that evidence is presented under controlled circumstances. The judge instructs the jury from the outset that the allegations are proof of nothing; that the defendant is presumed innocent; that the prosecutor bears the burden of proving the case in the courtroom, not on paper; that the defense has a right to object to testimony and documents, and therefore such evidence is irrelevant until the court has ruled on those objections; and that the only thing that matters is the jury’s assessment of the testimony and other evidence as they are admitted in the courtroom.

Chutkan has not appended Smith’s submission with any of those fundamental due-process protections. She has just released it to the press — the opposite of what a judge concerned about the jury pool and the defendant’s fair-trial rights would do.

But again, this is not a legal exercise, it’s a political one.

Chutkan and Smith have never been worried about prejudicing the Washington, D.C., jury pool. Rather, Smith chose Washington as the venue for both of his investigations — even the probe of the case in which everything of consequence happened in Florida — because of its hostility to Trump. He sees that default setting as a benefit, not a flaw. Furthermore, there is a good chance that no trial of this case will ever occur. Even if it does, it would be more than a year from now. No one is even pretending, for appearances’ sake, that the jury pool is a current front-of-mind concern.

The point of Smith’s tome, and the publication of it by the Obama-appointed Chutkan, is to get the J6 evidence, chapter and verse, into the hands of the media–Democrat complex and the Harris campaign. Waiting was not an option. Smith’s original plan, with Chutkan’s cooperation on timing, was to gift Democrats with a trial and conviction in the campaign stretch-run. That became impossible, so the proffer is the best he can do.

As I indicated in last night’s column, how effective this gambit will be depends on how much the broad electorate has moved on from the Capitol riot. Partisan Democrats and MAGA-world, for their different reasons, have intense, fixed feelings about the matter. But the question is whether most voters have already factored into their calculations what January 6 indicates about Trump’s fitness for office. If they prioritize other issues that have arisen in the ensuing four years of Biden-Harris dysfunction, Smith’s proffer won’t make a material difference in the election outcome — even though, to repeat, it is a compelling (though one-sided) document.

Legal Considerations

That brings me to the second consideration: how to judge Smith’s proffer as a legal matter. While it’s a gripping story of fraud and corruption, I’m not sure it will fare well when assessed under Trump v. United States, the Supreme Court’s July 1 immunity decision.

Here’s Smith’s problem: He really wants to prove presidential acts, while most of the justices have made clear that prosecutors should steer clear of presidential acts — for fear that potentially criminalizing them could degrade the presidency, making it incapable of performing its elemental role in our constitutional framework. Hence, the prosecutor and the Supreme Court are coming at this with antithetical assumptions — and prosecutors don’t win those battles.

You would think from Smith’s proffer that the Court’s immunity decision is just a bump in the road and that even if the acts at issue are official presidential acts, any presumption of immunity can easily be overcome. As Smith sees it, Trump was engaged in a fraud, and that fraud principally involved his status as a candidate, not as an officeholder; consequently, no immunity, Q.E.D. Smith acts as if his case is now fine because he has expunged the part to which the Court objected: Trump’s alleged scheme to exploit his control of the Justice Department in furtherance of his deceptive claims of election fraud in seven contested states. The justices found that this allegation implicated core Article II executive power, as contrasted with other presidential acts that are within the broad ambit of legitimate executive authority but attenuated from the constitutional core.

To the contrary, what the majority decision by SCOTUS says is that all official acts are at least presumptively immune from prosecution; the Justice Department scheme was just the clearest example of acts from which prosecutors should steer clear. The opinion written by Chief Justice John Roberts indicated that the majority was poised to hold that all official acts are immune; the justices decided, however, that it was sufficient unto the day to hold that core acts were absolutely immune, and to instruct Judge Chutkan to parse through the allegations indulging a strong presumption that any official act is immune. If, despite the Court’s admonitions against prosecuting presidential acts, Smith wanted to persist, he could overcome the presumption of immunity only by meeting a daunting burden: As to each disputed act, the prosecutor would have to show that applying a criminal prohibition would pose no dangers of intrusion on the authority and functions of the executive branch.

The chief justice’s discussion of this standard elucidates that the majority is broad-minded — I’m tempted to say, creative — about the hypothetical possibilities that prosecuting any type of presidential act would harm the executive branch. The easily discernible undertone of the Court’s ruling is that the norm, established over nearly a quarter millennium, of not indicting presidents over how they exercise executive power is worth preserving. Constitutionally speaking, policing the abuse of presidential authority is the business of Congress, not prosecutors and courts.

Consistent with this, the majority made clear that presidents could not be prosecuted for wielding their powers with bad intent or corrupt motives. Once it is determined that an act was within the wide ambit of legitimate executive power, it is presumed immune, and the prosecutor (an inferior executive officer) is not at liberty to inquire into the chief executive’s state of mind. Again, that’s for Congress, which is given an arsenal of powers, up to and including impeachment and removal, to address executive misconduct, and it’s under no limitations regarding the scope of its inquiry.

With that understanding of the Trump decision, Smith’s submission provokes cognitive dissonance. The justices are saying, “You shouldn’t do this.” Smith is saying, “Don’t worry, it’s a slam dunk.”

Smith is taking two tacks against the immunity ruling, one that I believe runs into the teeth of its warnings, and the other based on a proposition that the Court, without conclusively deciding the matter, has already expressed skepticism about.

1. The Contention That Fraud Vitiates the Official Character of Presidential Acts

The first tack is to contend that, even though Trump had the status of president at the relevant time, he was so manifestly engaged in a criminal fraud that his actions shed any claimed “official” character. This is along the lines of saying, “Presidents don’t act this way; since Trump did, his actions were inherently non-presidential.”

To take an example, Smith’s proffer asserts that Trump planned to fraudulently claim victory even before the 2020 election took place. That is, it was fully explained to him that, because he urged his voters not to vote by mail, early Election Day returns from the polling precincts might misleadingly show that he had a big lead, a trend that would inevitably reverse later in evening when mail-in ballots were counted. Because of Covid complications, it might not be until the wee hours of the morning, or even days later, that the election result would be known. According to Smith, Trump told advisers that he’d simply declare victory while the early results had him in the lead, and then claim fraud when the tide turned. In fact, Smith says Trump laid the groundwork for this in the months preceding the election, refusing to commit to accepting the results and openly saying he’d easily win unless there was massive fraud.

Subsequently, Trump did exactly as he (and an adviser, who appears to be Steve Bannon) predicted: He claimed victory on the night of the election and immediately began crying “fraud” when the mail-in votes poured in. He replaced his legal team with one led by Rudy Giuliani, which was allegedly willing to claim fraud in the absence of proof. And he is said to have indicated that he did not care whether there was proof of fraud — that he just needed enough recriminations and chaos to create the illusion of fraud in the minds of his supporters; their outrage and his browbeating would pressure Republicans at the state and federal levels to try to overturn the election.

Here, I feel Smith’s pain because I believe he’s right: This is exactly what Trump did. To reiterate what I said last night, though, this is not exactly late-breaking news. We’ve known it for four years.

Now, it’s hard to bear what I’m about to say in mind given the heated political context we’re in, but let’s try to remember: This is a criminal proceeding in court where the defendant is presumed innocent and the government’s objective is to convict and imprison Trump. This is not a political inquiry into Trump’s fitness for office. A criminal proceeding is governed by court precedent and due process, not by anyone’s desire for comeuppance or poetic justice.

Under court precedent, the pertinent question is whether Trump’s actions were within the ambit of official executive authority. That authority is so immense that the Trump v. U.S. ruling said actions must be deemed official unless they are “manifestly and palpably beyond” the outer perimeter of executive authority. Smith cannot credibly object that this would put a president who has committed ordinary crimes above the law; the Trump decision held that an act does not shed its official character just because it “allegedly violates a generally applicable law.” And Smith cannot credibly object that Trump’s purposes were corrupt; again, the Court unambiguously asserted that, if the acts at issue are official, Trump’s motive and state of mind are beside the point. (“In dividing official from unofficial conduct, courts may not inquire into the president’s motives.”)

In essence, Smith is rehashing theories the Trump decision has rejected. I don’t think that’s going to work. Indeed, it might encourage the Court to take the step it adumbrated but ultimately resisted in the immunity ruling: namely, hold that all official executive acts, not just core executive acts, are immune from criminal prosecution.

Of course, the Supreme Court may never review Smith’s post–Trump v. U.S. immunity theories. If Trump wins the election, he will fire Smith and direct the DOJ to dismiss the J6 case, making it unlikely to reach the Supreme Court again. Smith’s submission is meant to sway the voters, not the justices.

2. Office Seeker, Not Officeholder

Smith is zealous, but he’s not a dolt — quite the opposite (and the experienced senior government attorneys advising him are similarly bright). So his second tack makes more sense, though I suspect it may fail as a legal strategy. He contends that, in the context of the 2020 election, Trump was predominantly engaged in private conduct as a candidate, not in official presidential acts — i.e., he must be deemed an office seeker, just like every other candidate, not an officeholder wielding official powers.

What’s more, in our constitutional system, the official responsibility for conducting elections and certifying election results is vested by the Constitution in the state governments and Congress, not in the executive branch of the federal government. Therefore, Smith’s theory goes, the president does not have authority over presidential elections; to the extent Trump took actions in connection with the election and the challenging of state election results, they could not have been official acts.

In drawing this office seeker/officeholder distinction, Smith conveys how vital former vice president Mike Pence is to the prosecution’s case. Smith seeks to prove that Pence told Trump he believed the election-fraud claims were baseless; that Pence counseled Trump to accept defeat graciously; and that Pence was subjected to relentless pressure by Trump to exploit his role at the joint session of Congress, by attempting to either invalidate electoral votes or remand those votes back to the disputed states (where Trump would pressure Republican legislators and officials to invalidate the popular-election results).

By attempting to criminalize communications between the two top executive officeholders, a prosecutor creates patent privilege and immunity issues. Hence, Smith’s initial approach was to stress that, in connection with the election and certification of electoral votes, the vice president acts only in his constitutional capacity as president of the Senate — a legislative function, not an executive one. The problem for Smith is that the Court did not buy that theory. The Trump opinion holds that the vice president’s relationship with the president is so fundamental to operations of the executive branch that their communications are presumptively official executive acts; that is so even in the context of the vice president’s legislative role because in it, the veep carries out the president’s policy. (Recall, for example, Vice President Harris’s tie-breaking Senate votes to enact President Biden’s legislative priorities.)

In his new submission, Smith tries a different approach in positing the Pence proof as non-official: Trump and Pence ran for office together, were in the 2020 campaign together, and their communications in this context are therefore those of candidates (i.e., private and not immune) not of the two top executive officeholders (official and immune).

Again, that’s Smith’s premise — a bright, discrete line can be drawn between candidate actions and executive actions. If that premise were accepted, Smith would not need to worry that the Supreme Court would say he was improperly using motive or criminal intent to criminalize presidential acts. If the acts are private, rather than presidential, they are fair game for prosecutors — and so are motive and intent.

The problem for Smith is that the rejection of his premise is implicit in the Trump decision.

Chief Justice Roberts repeatedly stressed that, because of the vastness of presidential power, it is extraordinarily difficult to conclude that an action taken, ostensibly in his official capacity, is manifestly and palpably beyond a president’s authority. The entirety of the majority opinion rejects the notion that there is a readily discernible divide between an incumbent president’s actions as a candidate and as president.

If there were such a divide, the Court would not have excised the alleged Justice Department scheme from Smith’s case; it would instead have held that Trump’s status as a candidate — i.e., as an office seeker self-interested in the DOJ actions he was directing — vitiated the official character of those directives. In marked contrast, Roberts emphasized that a prosecutor’s allegation that the president’s official actions were “shams” or that they were “proposed for an improper purpose” — such as advancing his reelection bid — do not divest the president of his legitimate authority.

In fact, Roberts even rejected the seeming concession of Trump’s own lawyers that the so-called fake-electors scheme was strictly private, nonofficial conduct. This scheme — the assembling of alternative slates of Trump electors in disputed states to cast those states’ electoral votes in the event that the election vote was overturned by state courts or legislatures — was solely, incontestably related to Trump’s candidacy, not his presidency. Yet the court concluded that Trump’s actions in this context might be deemed official, based on historical precedent (specifically, President Ulysses S. Grant’s dispatching of troops to Louisiana and Mississippi in 1876 to ensure that Republican electors got certified, effectively ensuring the election of President Rutherford B. Hayes.) To be clear, the Court did not conclusively decide that the fake-electors scheme implicated official acts; but its reasoning rejects the premise that campaign activity can be neatly divided from official presidential acts.

Ironically, Smith’s own indictment refutes his contention that the president has no official role in elections.

In his capacity as a federal prosecutor, and thus an officer of the executive branch, Smith has charged Trump with allegedly plotting to frustrate the right of Americans to vote in state-conducted elections for federal office (i.e., the voting rights of the citizens in the seven states Trump sought to contest). As I’ve previously observed (see, e.g., here), this is an untenable stretch of civil-rights laws that were meant, in the 19th century, to criminalize the forcible intimidation of blacks in Southern states in order to prevent them from voting. But regardless of whether I am right about that, I don’t see how Smith can have it both ways: If he is prosecuting, under the auspices of executive authority (i.e., the president’s authority) to protect the integrity of presidential elections, he can’t credibly say that an incumbent president has no interest in or authority to police election integrity. The fact that Trump was also a candidate for the presidency would not nullify his executive authority.

What Smith is really saying is that Trump didn’t care a whit about election integrity — he was using his powers to try to steal the election. Probably so . . . but if he was using his powers, then he was engaged in official acts, and the Court says prosecutors and courts cannot inquire into a president’s motives for engaging in official acts.

Jack Smith’s submission could be effective in its intended purpose of influencing voters during the next 31 days. Legally speaking, while he’ll probably get a sympathetic hearing from Judge Chutkan, the sledding would be much rougher in the appellate courts . . . if the matter ever gets that far again.