Two months after the Supreme Court granted Donald J. Trump, and all future presidents, blanket immunity from prosecution for so-called official acts, we are beginning to see how Trump v. United States is reshaping all four lawsuits against Trump. While we wait to hear whether Trump’s sentencing in Manhattan will go forward on September 18, special counsel Jack Smith is appealing Judge Ellen Cannon’s decision, and last week Smith filed a superseding indictment in the election sabotage case against Trump in Washington, D.C. As part of Andrea Bernstein’s special series for Amicus, “The Law According to Trump,” Andrea is joined by Slate jurisprudence editor Jeremy Stahl to discuss how Trump v. United States has influenced Smith v. Trump. This transcript has been edited and condensed for clarity.
Andrea Bernstein: The new indictment against Jack Smith includes the same four counts as the original indictment. Has the election sabotage case against Trump changed with this new indictment?
Jeremy Stahl: Trump v. United States is a major departure from Smith’s earlier indictment and his case against Trump. Smith’s response is essentially a rehash of the case. It’s essentially the same four counts, with much of the same factual information, but it’s shorter—nine pages shorter than the original 45-page indictment. The outline of the indictment remains largely the same, with some minor changes and significant deletions.
The indictment reworded sections about Vice President Mike Pence’s role in the Jan. 6 electoral vote count, because while the Supreme Court warned Jack Smith against using that in his charges against Trump, it did not explicitly say he could not do so.
The decision removes references to actions taken by Trump to influence the Justice Department to try to overturn the election, because the Supreme Court has explicitly ruled that such actions cannot be part of the case.
The material the Justice Department omitted from the new indictment wasn’t just gibberish. It was part of the original charge of conspiracy to illegally overturn the election, Smith said, since the election, Trump had been pressuring Attorney General Bill Barr — who eventually resigned during that time — then-acting Attorney General Jeff Rosen, and acting Deputy Attorney General Rich Donohue. Smith’s previous indictment described Trump telling them, There’s evidence of fraud, what about the bags under the table in Georgia? Trump was referring to this fictional claim that election workers in Georgia were swapping Trump ballots for Biden ballots with a bunch of stuffed bags. It was a perennial piece of misinformation in the wake of the 2020 election. But Donohue told President Trump, No sir, there were no bags under the table in Georgia. And then Jeffrey Clark, the head of the civil division, comes in and asks for this letter to be drafted, saying, Don’t certify the votes, because the Georgia election is still under investigation. Clark wants to send this letter to the Georgia legislature.
Donohue and Rosen, the acting deputy attorney general, panicked. Then there was a dramatic late-night meeting at the White House where Trump tried to convince them to agree to send the letter, and he wanted to appoint Jeffrey Clarke to be attorney general. And then, according to various reports and transcripts of that meeting, Trump realized he couldn’t get this through the bureaucracy, so he gave up. That’s the part of the order that the Supreme Court absolutely rejected: Any contact with the Justice Department, any request from it, according to this U.S. Supreme Court, is fine.
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There was also the alleged corruption part of this. Trump was threatening to fire these people if they didn’t do what he wanted — fire the top Justice Department officials and replace them with Jeff Clarke. Here was the alleged criminal conduct, but all of that was dismissed by the Supreme Court’s decision in Trump v. United States , which said that there is absolute immunity for essential official acts — that is, the parts of the president’s role that the Constitution explicitly assigns to him alone.
The Supreme Court has said that the president alone has authority over the Justice Department, so that is a fundamental part of his role, and therefore he is completely immune. He is immune even if he acts corruptly. And what’s more, you can’t even look at what his possible motives might be in doing all of this. It doesn’t matter if you want to try to steal the election, it doesn’t matter if you want to try to corrupt the Justice Department — Jack Smith, or any attorney general, is not even allowed to look at that.
The other piece that was stripped from this was Trump’s direct communications with Justice Department officials, with national security officials, with all these people who were part of his administration who told him, no, there was no theft, there was no stolen election, everything you were told about this story is a lie. That was very important in the original Jack Smith indictment because it could prove that Trump knew from a credible source that what he was paying was a lie. It could provide evidence of corrupt intent, and perhaps corrupt motives. All of that was stripped from this new indictment.
So, same charges, but two big pieces of the puzzle were cut out.
Yes, one thing is abundantly clear from Trump v. United States: Trump can say anything he wants to the Justice Department and order it to do anything he wants. That’s fine, he’s immune from criminal prosecution, according to the U.S. Supreme Court. But what’s still in the case, and what the Supreme Court has defined less clearly, is his communications with Vice President Mike Pence.
Yes, Jack Smith has changed some of the language to describe Trump as a candidate for office, not as president. Instead of describing Mike Pence as his vice president, Smith describes Pence as Trump’s running mate in the new indictment. Smith attempts to shift the activity described and accused of in this relationship between the two men from conversations and actions between the president and vice president, which can be covered by official acts, to individual candidates running for president and vice president, acting in their private capacities for their own personal benefit.
The question now is whether Judge Tanya Chutkan will believe this, because it seems likely that Donald Trump will challenge this version of events and try to put it back in the category of “official acts.” The question is also how the appeals courts will respond to anything Judge Chutkan does.
So, Justice Department, this whole alleged conspiracy is no longer a crime.
Trump isn’t the only one H.R. McMaster has criticized in his new book: Voting rights situation in some swing states is alarming Despite surviving one war after another, I was proud of my house. But now, everything I loved is gone. The Supreme Court just signaled what it will do if the election is close
Contacts with Mike Pence – Smith alleges that Trump was doing this in his personal capacity, trying to overturn the election as a candidate. Is there anything else in the new indictment that seems vulnerable to another set of Supreme Court challenges?
The thing about the Supreme Court ruling is that it was very vague and very broad, and it could cover a lot. It didn’t provide much in the way of specific instructions to Justice Chutkan or to the lower court judges who might be dealing with these questions, other than to say, these specific things are not permissible and there are these categories. The Supreme Court didn’t define the categories; it was more like, we’ll figure out the categories when we see them and we’ll figure out whether the second category of official acts is presumptively immune or fully immune when we get to that bridge. So everything in these charges seems like it could be subject to criticism the way the Supreme Court opinion was written. All of that could be vulnerable because Trump is going to try to characterize all of that as doing his job as president.
Yes, it is almost inconceivable, given all the uncertainty, that there will not be a second round in the US presidential election, which is an amazing idea.
