Jack Smith Faces Decision on Whether To Prune His Indictment or Risk Letting Trump Walk

The special counsel will have to decide whether he wishes to prosecute his January 6 charges as he wrote them or pursue a pared down version that could fast-track a verdict.

AP/Alex Brandon
Special Counsel Jack Smith on June 9, 2023, at Washington. AP/Alex Brandon

Special Counsel Jack Smith, in the wake of the Supreme Court’s immunity decision, is facing a decision with which even King Solomon might have a hard time.

Now that the Nine have ruled that presidents possess immunity for official acts but are not protected for unofficial acts, Mr. Smith will have to decide whether he wishes to prosecute his January 6 indictment as he wrote it — and possibly never go to trial — or instead winnow his charges to those that could fast-track a verdict.

The Supreme Court’s remand of the case to Judge Tanya Chutkan to distinguish between official and unofficial acts throws that choice into sharp relief, even as it promises months of litigation over how to categorize the acts enumerated in the indictment. 

An amended indictment would not necessarily require a second grand jury or a duplicate showing of probable cause. That means that the choice of how much to charge — and whether certain allegations can withstand the new standard adumbrated by the high court — is entirely in the prosecutor’s purview. Mr. Smith has already amended his Mar-a-Lago indictment to add more charges.

Mr. Smith’s January 6 indictment — unlike say, District Attorney Fani Willis’s sprawling racketeering charge sheet in Fulton County, Georgia — is already relatively streamlined. Trump is the only defendant, and he faces only four charges. Two of those derive from the Sarbanes-Oxley Act, which the Supreme Court has of late ruled was overcharged with respect to the riot at the Capitol.   

Here, though, the path to opening statements could run through an even narrower compendium of evidence — only those predicated on unofficial acts, and therefore not, in the high court’s parlance, “presumptively” or “absolutely” immune. Mr. Smith’s task is made even more arduous by the justices’ order that the president’s official duties are to be construed broadly, and that prosecutors carry a burden if they hope to pierce that immunity.

The possibility of an altered indictment surfaced during oral arguments, when Justice Amy Coney Barrett asked the government’s advocate, Michael Drebeen, whether Mr. Smith could “just proceed based on the private conduct and drop the official conduct?” Mr. Drebeen resisted that suggestion, instead clinging to the pursuit of an “integrated conspiracy.”

That possibility now appears to be precluded. Chief Justice Roberts’s opinion finds that “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” colloquies that Mr. Smith cites in his indictment. The special counsel also writes that Trump  “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” 

The Supreme Court, though, has now ruled, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” meaning that such conduct is at least presumptively immune from prosecution. For Mr. Smith to introduce evidence related to the certification of the vote, he would need to overcome that presumption before Judge Chutkan. 

Mr. Smith’s case is not hopeless, though. The high court held that the president “enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.” Trump’s attorney, John Sauer, during oral arguments acknowledged to Justice Coney Barrett that he considers the accusation that Trump spread “false claims of election fraud to spearhead his challenges to the election results” to be unofficial. 

Mr. Sauer also conceded that a “plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” would also be private, as would conspiring with a private attorney to submit a document in court that “contained false allegations to support a challenge.” Mr. Smith could see these concessions as the nucleus of a leaner yet more viable indictment.

Trump’s team is already trying to foreclose Mr. Smith from pursuing that path. One of the 45th president’s attorneys, Will Scharf, took to CNN to declare that “the assembly of those alternate slates of electors was an official act of the presidency,” a reversal of Mr. Sauer’s position. Trump will not be bound by that attorney’s concession, as it came during oral arguments. 

Mr. Dreeben during oral arguments speculated that Mr. Smith “could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant’s knowledge and intent.” That will no longer be possible, as the court’s six justice majority found that official acts that are immune cannot be used as evidence for unofficial ones that are not. 

In any event, the possibility that Mr. Smith could try Trump before a possible victory in November is rapidly receding, which is why the Washington Post reports that the special counsel is planning to persist until Inauguration Day, in January. That frustrated timeline, though, could make him revisit Justice Coney Barrett’s musing that a trial solely on the basis of unofficial acts could “begin immediately.”

The New York Sun

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