August 27, 2024
Special Counsel Jack Smith is not letting the federal election interference criminal case against former President Trump—go.
Yes – the supreme court said presidents are immune from criminal prosecution for certain crimes they may commit while in office. But just moments ago – smith filed this superseding indictment against the former president, reframing the way he’s going to prosecute trump for his alleged attempts to interfere in the 2020 election
What? Can he do that? What’s going on? I’m confused. I know. Let me explain.
First – just because in July the supreme court ruled that presidents are immune from criminal prosecution for certain crimes –does not mean they are immune from prosecution for all crimes. What the supreme court said was presidents are immune from prosecution for crimes they commit while in office that are considered official acts of the president. But the Supreme Court was clear – presidents are not immune from criminal prosecution for crimes committed while in office that fall outside of the president’s official duties.
So what Jack Smith did was separate the alleged criminal actions of “President Trump” from alleged criminal actions of “candidate Trump.” See President Trump would – in most cases be covered by the official acts immunity. But by law — a candidate’s actions are not considered “official acts” of the president. Smith did that by stripping out all the arguments and evidence he was using from government officials and government agencies who reported to Trump as president but kept all of the arguments and evidence that would legally fall outside of the official duties of the president. He reworked the indictment and said it covered the time frame from November 13, 2020 to January 20, 2021 when – according to Smith – trump had no constitutionally assigned presidential duties regarding the post-election transfer of power. Then smith took this new case to a new grand jury and that grand jury today *again* indicted former president trump on the same four felony federal charges.
This new 36-page indictment cuts out Trump’s alleged interactions with the Department of Justice regarding the 2020 election and cuts out all the information from the intelligence agencies who confirmed to trump he lost the election. And instead smith keeps the information from five private lawyers and keeps them as co-conspirators. This superseding indictment focuses on several things including — Trump’s pressure campaign on the states…. Trump’s alleged role in the creation of the fraudulent slates of electors in seven states. The speech Trump gave on the ellipse ahead of the capitol riot which Smith says provoked the crowd to disrupt the lawful certification of the 2020 election. Smith argues that speech was also not part of the “official duties of the president” because it was a privately funded, privately organized political rally.
But there’s one government official in this new indictment who was not taken out. Vice President Mike Pence. Smith reframes how Trump’s alleged pressure on Pence was illegal. Not because Mike Pence was the Vice President…but instead frames the pressure as illegal because mike pence was acting the president of the Senate – which is one of the actual constitutional roles of the vice president. By framing him as the president of the senate, smith argues trump’s pressure on him absolutely falls outside the scope of the official acts of the President of the United States.
Now – former President Trump’s team is going to push back all day long on this and argue all of these actions still fall under official duties of the president and therefore cannot be prosecuted. We’ll see what happens next week when judge Tanya Chutkan will hold a hearing in the DC federal district court to figure out how this case moves forward in light of the Supreme Court ruling and with this new superseding indictment.
Read the new superseding indictment of Trump here.
