Jack Smith Isn’t Backing Down

When the Supreme Court ruled, in July, that presidents are immune from prosecution for anything done as an official act, many observers reacted with immediate horror. They warned that the ruling would allow future presidents to act as despots, doing whatever they liked without fear of accountability. And in the immediate term, they predicted doom for the federal case against former President Donald Trump for attempting to subvert the 2020 election.

The effect of the ruling on future presidents will not be clear for some time. But Special Counsel Jack Smith, who is prosecuting Trump for the Justice Department, isn’t acting too rattled by the court’s decision.

Smith obtained a superseding indictment today in the case against Trump, who he had previously charged with four felonies. The new document is a little more concise and changes some language, but it keeps the same four felony charges and most of the same evidence. After taking a few weeks to review the Supreme Court ruling, Smith has apparently concluded it doesn’t change much about his case at all.

In addition to some slight rephrasings here and there, Smith makes two notable changes. First, he takes out all references to Trump’s attempt to involve the Justice Department in his subversion. Trump, who has spent much of his current presidential campaign warning about “weaponization” of the federal government, attempted just that as he sought to stay in office. The then-president asked the department to issue a letter saying the election was corrupt and then “leave the rest to me and the R[epublican] Congressmen,” according to meeting notes taken by a DOJ official. One of Trump’s confederates was Jeffrey Clark, a Justice Department official whom Trump tried to install as acting attorney general to further the scheme, before fierce resistance from DOJ and White House lawyers stayed his hand.

But the Supreme Court ruled that “because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” The superseding indictment thus takes out references to Trump’s conversations with these officials. It removes Clark from a list of co-conspirators. And it deletes a section of the initial indictment that explained how Trump tried to enlist the department to help solicit slates of false electors from states.

Smith also takes pains in other places to stipulate that Trump was not acting in any official capacity that might grant him immunity. For example, as it relates to false electors, Smith writes that “the Defendant had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.” As for the January 6, 2021, certification of the vote, “The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” Smith asserts that White House Chief of Staff Mark Meadows, who was involved in a call to pressure Georgia officials to “find” Trump votes, was acting in a private or political capacity, rather than as a White House official.

Smith’s filing is just a prosecutor’s argument. Judge Tanya Chutkan will now have to review the indictment and the Supreme Court ruling and determine whether she agrees with Smith’s claims about what the justices did and did not intend; any decision she makes will likely be subject to appeal.

Even if Chutkan sides with Smith and his prosecution proceeds basically unchanged, that does not excuse the Supreme Court’s ruling. Trump’s attempt to weaponize the Justice Department is one of the more dangerous things he did as president. Many of the other election-subversion ploys were two-bit maneuvers with little prospect of success, and they were promptly and rightly rejected by courts. But the DOJ actions were an attempt to marshal the mighty power of the federal government to keep him office.

Smith has been busy after a quiet period: Yesterday, he filed an appeal of Judge Aileen Cannon’s dismissal of his classified-documents case in Florida. Between the two cases, he’ll have much to do for the foreseeable future—unless Trump wins, in which case the new president is likely to end the cases. Sometimes, the things the president can do legally are the most disturbing.