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HOW JACK SMITH’S RE-INDICTMENT OF TRUMP ADDRESSES SCOTUS IMMUNITY
RULING  
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Kim Wehle
August 29, 2024
The xxxxxx
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_ Smith is outmaneuvering the Supreme Court majority by presenting a
threshold question for Judge Chutkan to decide: Is a candidate
campaigning for president who happens to be the incumbent operating in
an official presidential capacity? _

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SPECIAL COUNSEL JACK SMITH’S superseding indictment
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Donald Trump for his role in the January 6th insurrection at the
Capitol and the wider effort to overturn the 2020 election is nothing
short of a masterstroke.

Filed on Tuesday, just a few days before the Friday deadline for
advising U.S. District Judge Tanya Chutkan of Smith’s plan for
dealing with the Supreme Court’s terrible decision in _Trump v.
U.S._, the indictment contains the same four counts that appeared in
the original one: conspiracy to defraud the United States; conspiracy
to obstruct an official proceeding; obstruction of and attempt to
obstruct an official proceeding; and conspiracy against rights.

Trump isn’t getting any lighter treatment just because he has in his
corner a majority of justices—three of whom he appointed, another
whose wife supported
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Stop the Steal campaign that gave rise to January 6th, and another
whose wife flew
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signaling support for Trump at their home. Smith is not backing down.

But what’s especially impressive about Smith’s maneuver is how
brilliantly strategic it is. Recall that in its immunity decision
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the Supreme Court majority created a multilayered test for deciding if
presidents get away with committing crimes even after they leave
office. Step one requires prosecutors and judges to cut out of any
indictment the president’s “core” powers, the exercise of which
are immune from legal scrutiny altogether. Step two mandates that
judges presume immunity for any “official” powers, meaning that
the action in question is not “manifestly or palpably” outside the
official realm of presidential authority (get out your crystal ball,
friends). Step three then imposes on the government the high burden of
overcoming that presumption by showing that applying scrutiny to a
particular presidential action would not somehow impede the
president’s ability to do his job by making him nervous that it
could come back to bite him in an indictment after he cedes power to
the next president.

As Associate Justice Ketanji Brown Jackson pointed out in her
dissenting opinion, this series of hurdles effectively gives the
conservative justices “preclearance” authority on investigations
or indictments of presidents. It’s as if the justices—not Smith or
Attorney General Merrick Garland—are now the über-prosecutors on
the beat for presidents. (This creates a serious separation of powers
problem, but that’s for another day.)

Jackson also emphasized that the Court’s new test for presidential
immunity makes it hard for one-size-fits-all rulings. Instead, rulings
must be applied fact-by-fact. For example: Is Trump’s statement on
January 6th urging the crowd of supporters to “fight” and “fight
like hell” something that is manifestly and palpably not outside the
official powers of a president? What about his phone call
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Georgia Secretary of State Brad Raffensperger, during which he
declared, “I just want to find 11,780 votes”? Trump had White
House aides on the call, after all. Yet how the states count votes is
not within presidents’ job description. After complex proceedings in
the lower courts parsing through all of this detail, the majority
opinion assumed, the Supreme Court could one day provide a definitive
(albeit objective) answer.

The majority thus set up a nearly impossible task, with very few
guidelines, that could take months—if not years—to sort through.
Smith was widely expected to ask Chutkan for an evidentiary hearing to
sort through all these pieces, which would have publicly aired at
least some portion of what he planned to present at trial, possibly
before the election. This strategy would have had its upsides
(allowing for some scrutiny of Trump’s misdeeds before November 5)
and downsides (inviting political heat and tipping the prosecution’s
hand before trial). But given how the Supreme Court majority teed
things up, there seemed to be little choice.

Inevitably, there still may be a need for an evidentiary hearing to
address particular allegations in the indictment.

What Smith did is outmaneuver the Supreme Court majority by presenting
a threshold question for Chutkan to decide: Is a candidate campaigning
to win the presidency simultaneously operating in an official
presidential capacity if he also happens to be the incumbent? This is
the kind of clean legal issue that could be resolved _without_ a
messy evidentiary hearing. The U.S. Court of Appeals for the D.C.
Circuit already did so in a separate case involving a civil action
against Trump over January 6th. In _Blassingame v. Trump
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that court in December of last year drew the very same distinction
that Smith makes in the new indictment. Chief Judge Srinivasan wrote
for a unanimous panel:

The Office of the Presidency as an institution is agnostic about who
will occupy it next. And campaigning to _gain_ that office is not an
official act _of _the office. So, when a sitting President running
for a second term attends a private fundraiser for his re-election
effort, hires (or fires) his campaign staff, cuts a political ad
supporting his candidacy, or speaks at a campaign rally funded and
organized by his re-election campaign committee, he is not carrying
out the official duties of the presidency. He is acting as an
office-_seeker, _not an office-_holder_—no less than are the
persons running against him when they take precisely the same actions
in their competing campaigns to attain precisely the same office.

Because this D.C. Circuit opinion came from a _separate civil
action_ filed against Trump—_not_ the criminal one filed by
Smith’s team—it remains undisturbed by the high court’s ruling
on immunity. It remains, as lawyers would say, “good law.”

If, as a matter of principle, _anything_ that candidates
do _as_ candidates is not official, even if those candidates are
officeholders, then in the case of candidates
who _are_ officeholders, their re-election-related actions are fair
game for prosecutors. If the lower courts rule Smith’s way, his case
could avoid the burdensome fact-by-fact analysis that the Supreme
Court majority opinion on presidential immunity seems to demand: The
zone of prosecutable activity on Trump’s part will have already been
established. Of course, the right-wing justices could still decide
that the specific actions alleged in the indictment are too
“official” for their taste and kill the January 6th case for good.

But for now, Smith has shifted the debate onto his turf.

Kim Wehle [[link removed]] is Prof of Law. Fmr Asst US
Attorney. Writer @politico, @theatlantic, @xxxxxxonline. Legal
contributor @abcnews. Author. Latest book out Sept. 2: Pardon Power:
How the Pardon System Works--and Why.
PRE-ORDER: [link removed]

_You may have noticed that sh*t has gotten weird the last few
years. The xxxxxx [[link removed]] was founded to
provide analysis and reporting in defense of America’s liberal
democracy. That’s it. That’s the mission. The xxxxxx was
founded in 2019 by Sarah Longwell, Charlie Sykes, and Bill Kristol._

* Jack Smith
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* Donald Trump
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* Tanya Chutkan
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* Presidential Immunity
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