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When the Supreme Court declared that a president may well be above the law, Jack Smith's Washington, DC, case got more complicated. Yesterday, in an effort to compensate, the Special Counsel filed a new indictment with Judge Tanya Chutkan.
Lawyer-reader A.R. in Los Angeles, CA was willing and able to write up the news:
I am proud to say that I had "superseding indictment" on my bingo card. And that was before Jack Smith asked for more time to supposedly assess how to move forward in the trial court in light of the immunity decision. The indictment came shortly before the parties were to file briefs outlining how the trial court should proceed. And it was filed a few days before the DOJ's self-imposed moratorium on indictments or other actions 60 days before an election that might have an impact on the outcome.
This was a very savvy move, in my view, as it puts the prosecutor back in the driver's seat and allowed him to tailor the indictment to the Supreme Court's immunity decision. The parties must still file proposals to the Court as to how to conduct pre-trial hearings, but the process now will be much more straightforward. It essentially hits the reset button and starts everything over, but given that nothing was going to happen before election day anyway, this positions the Special Counsel to survive the inevitable return to the Supreme Court after Trump brings a motion to dismiss. This was Smith's best play: if Trump wins the election, Smith knows he will get the boot, regardless of how corrupt and lawless that move will be; if Trump loses, Smith can let the case take its course without the same urgency as when it was first filed. I suspect that with Trump out of the picture, the legal landscape and the appetite of SCOTUS to bail out Trump will be much changed.
And now on to the specifics of this new indictment. As readers of this site know, in its immunity ruling, SCOTUS divided presidential acts into 3 buckets: (1) acts within the president's core constitutional functions; (2) other official acts; and (3) unofficial acts. And the Court hinted at what parts of the indictment could potentially survive the decision, such as the fake electors scheme, calls to state officials, and pressuring Vice President Mike Pence to refuse to certify the election. Justice Barrett didn't even hint: In her concurrence, she explicitly said that the efforts to assemble fake electors and pressure state officials into overturning the election results were not official acts.
Turns out there's nothing wrong with Smith's reading ability. The four charges are the same: (1) conspiracy to defraud the U.S, (2) conspiracy to obstruct an official proceeding, (3) obstruction of and attempt to obstruct an official proceeding and (4) conspiracy against rights. But the facts laid out to prove those charges have changed. Gone is any reference to Jeffrey Clark or conversations with members of the Department of Justice regarding peddling false claims of election fraud. The Court held that a president has "exclusive authority over the investigative and prosecutorial functions over the Justice Department and its officials" and, therefore, "Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials." What's interesting is they have simply plucked co-conspirator 4 (Clark) out of the indictment without renumbering the others. So, the remaining co-conspirators are still 1, 2, 3, 5 and 6. They also lifted the sub-paragraph regarding Trump's use of the Justice Department out of the section called "Methods and Means." Finally, the section entitled "The Defendant's Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes with the Defendant's," paragraphs 70-85, was simply taken out. It's almost as though they anticipated having to excise some of these allegations.
Other paragraphs were slightly re-worked to remove any reference to DoJ attorneys or other government officials, such as the CISA Director. Prosecutors were also careful to allege that Trump was using his eX-Twitter account for "personal purposes" when he spread lies about the election, and noted that the Jan. 6 rally was a "privately funded and privately organized political rally." These allegations are a direct response to the Supreme Court observing that whether Trump's actions and tweets on January 6 were official or unofficial depends on "context," including "who was involved in transmitting the electronic communications and in organizing the rally."
The pressure campaign on state officials is still there, as are the details of the infamous call to Georgia Secretary of State Brad Raffensperger (R). The allegations about the fraudulent electors scheme are the same. The few paragraphs in these sections referencing Trump's conversations with DoJ officials have been removed. Finally, the allegations regarding Trump's efforts to convince Pence to alter the election results at the certification proceeding, including assembling his supporters on Jan. 6 and inciting them to violence, are all still there. All in all, then, there's little of real substance that has changed. It is still a very powerful indictment, especially the recitation of events on Jan. 6. If you read only part of the indictment, I highly recommend reading paragraphs 88-100—it's chilling and infuriating.
The only other question mark is the effect of the Fischer case on the charge of obstructing an official proceeding. In Fischer, SCOTUS held that it wasn't enough to be present or even to have entered the Capitol to be charged with that count. There had to be allegations of tampering or interfering with documents associated with an official proceeding. I'm fairly certain Smith has alleged enough, between the fake electors certificates and the attempts to pressure Pence to not certify the election. Those are significantly more overt actions than breaking into the Capitol on the date of the certification proceeding. But that's probably what's next in Chutkan's courtroom —a hearing to determine if that count can stand. But again, I doubt if any of this gets resolved before the election concludes on Nov. 5.
Thanks, A.R.!
Not long after the superseding indictment was filed, Trump—to nobody's surprise—went ballistic. We've quoted enough of his word-salad rants lately, so how about a visualization instead?
Perfectly normal, perfectly healthy. Needless to say, the more threatened he feels, the more likely he is to campaign based on pure id—whether that is advisable or not.
Oh, and Smith has definitely been burning the midnight oil recently (or, if not him, the attorneys working under him). Yesterday brought the new indictment in Washington (36 pages) and the day before that was a filing with the United States Court of Appeals For the Eleventh Circuit (81 pages). In the latter document, the Special Counsel painstakingly shreds Aileen Cannon's decision to toss out the documents case. Should you care to read for yourself, pages 8-13 (by numbering; 29-34 of the overall PDF) contain a very clear summary of the government's case.
We don't know what the Eleventh Circuit will do here, of course. However, despite being very conservative, the judges have thus far had little tolerance for Cannon's legal fantasies. Also, Smith did not ask for Cannon to be removed from the case. However, both he and the judges of the Eleventh Circuit know very well that they are entitled to do so without being asked. So, there could be some real fireworks the day their ruling comes down. It will probably be a good day to buy some Truth Social stock. (Z)