Portside

SPECIAL COUNSEL JACK SMITH’S superseding indictment of 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 the Stop the Steal campaign that gave rise to January 6th, and another whose wife flew flags 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, 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 to 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, 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 is Prof of Law. Fmr Asst US Attorney. Writer @politico, @theatlantic, @bulwarkonline. Legal contributor @abcnews. Author. Latest book out Sept. 2: Pardon Power: How the Pardon System Works--and Why. PRE-ORDER: https://a.co/d/33EAbKR

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