Supreme Court Reluctantly Invited Smith to Include Pence Evidence in Election-Interference Case

Last night, we published my first-blush analysis of Biden–Harris DOJ special counsel Jack Smith’s superseding indictment in the 2020 election-interference case against former president Donald Trump. The superseder is Smith’s response to the Supreme Court’s July decision in Trump v. United States, which held that presidents and former presidents enjoy broad, but not unqualified, immunity from criminal prosecution related to their official acts.

One of the most intriguing aspects of the superseder, in my view, is Smith’s decision to press ahead with what he obviously regards as a crucial part of the prosecution: What the indictment alleges were efforts by Trump and his alleged coconspirators to pressure then-vice president Mike Pence to exploit his “ceremonial role as President of the Senate at the January 6 certification proceeding to fraudulently alter the election results.”

As Chief Justice John Roberts’s majority opinion elucidates (at pp. 21-24), the Court is concerned that, absent immunity from both charges and the use of evidence involving a president’s interactions with the vice president, the relationship between the two top officials in the executive branch could be undermined, and with it the functioning of the government. Consequently, the Court reasoned, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.”

The Trump ruling makes clear that all official conduct — i.e., anything within the outer ambit of legitimate presidential authority — is at least presumptively immune, and the Court may ultimately determine that it is absolutely immune. (“Core” executive conduct, meaning actions stemming from the president’s “exclusive and preclusive” Article II powers, is absolutely immune. That is why the Court held (at pp. 19-21) that allegations based on Trump directions to the Justice Department must be stricken from the indictment, notwithstanding Smith’s well-founded theory that at least some of those directions were corruptly motivated.)

Hence, in my post last night, I described the tension created by Smith’s determination to proceed on the Pence front despite the Court’s admonitions:

[N]otwithstanding 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.

A close reading of the Trump majority opinion illustrates that, however reluctantly, the Court left open the door for Smith to pursue the Pence angle, as long as it tightly targets the vice-president’s legislative role in connection solely with the January 6 certification proceeding. That proceeding is a purely congressional function as to which neither the Constitution nor statutory law (essentially, the Electoral Count Act, as it stood on January 6, 2021, and as it has since been amended) contemplates any role for the president — an exclusion that is all the more salient when the sitting president is also a candidate in an election he has lost but is contesting.

Chief Justice Roberts wrote:

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of presiding over the Senate is not an executive branch function. … With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose dangers of intrusion on the authority and functions of the Executive Branch. . . .

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President — even though they concern his role as President of the Senate — may well hinder the President’s ability to perform his constitutional functions. [I’ve omitted internal quotations and citations other than to §15.]

It seems to me that the Court is saying to Smith: We wish you wouldn’t do this because it could undermine the vital collaborative relationship between the only two high office holders elected by the entire nation; nevertheless, we can’t say there isn’t a discernible line between (a) what the VP does in his purely legislative task of counting electoral votes, which the president should stay out of (especially if the president is a candidate), and (b) what the VP does in legitimately furthering the president’s agenda for the country, even while carrying out the VP’s legislative function.

The Court emphasized that it was up to the prosecutor to rebut the presumption that Trump’s consultations with Pence in connection with January 6 are immune. But the majority also signaled that, if Smith tightly targets the January 6 certification process, that presumption can be overcome — i.e., it can properly be part of a criminal prosecution because there would be no danger of setting precedents that would impair the president’s constitutional functions. The justices left it to Judge Chutkan “to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence” Pence may proceed.

I believe that Judge Chutkan will uphold that part of Smith’s indictment, and that there are probably five votes on the Supreme Court that would affirm such a decision.

Just to be clear, we are talking here about immunity, not guilt. The fact that Chutkan is likely to allow this and other parts of Smith’s case to proceed does not mean Trump is guilty of the charges. Pretrial, he has many other legal cards to play in attacking the charges and Smith’s qualifications to bring them; and if the case ever does go to trial, Smith will have to prove Trump’s deceptive intent (among other things) beyond a reasonable doubt. Moreover, whatever decisions Chutkan makes about immunity are subject to pretrial appeals — to the D.C. Circuit and the Supreme Court. So nothing dispositive in this case is going to happen anytime soon.

And, as I said in last night’s post, by the time such consequential things could start happening, we’ll have new president. Donald Trump would obviously fire Jack Smith in the first minutes of his term. Kamala Harris would probably let Smith proceed; yet, it’s not inconceivable — assuming Trump, at 78 and defeated, has been diminished as a political factor — that she and her advisers could decide the lawfare baggage is not something she needs, and that a Trump prosecution’s potential to harm the presidency as an institution outweighs whatever upside there is in pursuing the case. (I know, I know . . . but I can still hope.)

There are many acts yet to come in this drama.