The new so-called superseding indictment that Special Counsel Jack Smith just filed against President Trump is a shocking document. Not that it’s a surprise. Our A.R. Hoffman has been <a href="https://www.nysun.com/article/jack-smith-in-what-could-be-bad-news-for-trump-readies-to-slim-down-his-january-6-indictment">alerting</a> readers for weeks to the prospect that a new indictment would be coming. It strips out charges that involve matters that the Supreme Court decided earlier this year are covered by immunity needed to protect the president from distraction by the courts.



Though not a surprise, the new indictment marks Mr. Smith’s original underestimation of the immunity question. What was the prosecutor —&nbsp;and the attorney general for that matter — thinking? Can the Justice Department, in a case this important, not have considered from the get-go that it was treading on protected ground? The prosecutor was encouraged by district court and appellate jurists, who all failed to detect immunity.&nbsp;



Mr. Smith’s trimming of his indictment underscores the Biden administration’s constitutional misjudgment in going after Trump on matters at the core of his presidency. It raises the possibility that this case might have been over and the 45th president in the hoosegow if the government had launched a modest prosecution to begin with, one that stayed well clear of the president’s official duties. Immunity was bound to appear on appeal.



That Mr. Smith was able to convene a new grand jury to hand up the same four charges with which he originally charged Trump refutes the argument from Democrats that the Supreme Court’s immunity ruling was a ratification of monarchy. President Biden and Vice President Harris even go so far as to propose a constitutional amendment to strip immunity from presidents. Mr. Smith’s new indictment, though, hardly appears crippled.&nbsp;



There is, it seems to us, a line between prosecutions of obvious criminality and politically inflected indictments that use courts to defy the voters’ will — and impair “the boldness of the President.” The phrase is Justice Antonin Scalia’s, and its logic impelled the Roberts Court to rule that the “President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”&nbsp;



A constitutional check, though, is not carte blanche. Mr. Smith, who edited but hardly started from scratch, appears to understand that better than President Biden, who wants a constitutional amendment to deprive his successors of immunity he enjoys. The new indictment excises references to the Department of Justice and one of the six unindicted co-conspirators has disappeared. Nine pages rest on the cutting room floor.&nbsp;



Mr. Smith’s path forward was previewed by an unlikely source — <a href="https://www.nysun.com/article/the-barrett-court">Justice Amy Coney Barrett</a>. In oral argument, she pushed Trump’s lawyer, John Sauer, to concede that whole swaths of Mr. Trump’s indictment cover “private” acts and are therefore fair game. Mr. Sauer conceded that they were. That startled us. After all, legal jeopardy for unofficial acts could still rattle the boldness of the president. Mr. Smith, though, was gifted a path forward.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;



This is because of the Supreme Court’s use of the word “unless.” At a minimum, it said, “the President must be immune from prosecution for an official act unless* the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Chief Justice Roberts warned that the “fraudulent elector” scheme could have been unofficial.



Yet the new indictment suggests that Mr. Smith is merely shrugging at the Supreme Court. Forget about Rome being built in a day — the special prosecutor merely touches up the facade of the Colosseum. If the courts credit the new indictment — and the district court and circuit riders in the district were prepared to accept the old one —&nbsp;it looks like Trump’s best chance for vindication would be the ballot rather than a trial.&nbsp;



_________



* Emphasis added by the Sun &nbsp;&nbsp;

Special Counsel Jack Smith delivers remarks on August 1, 2023 at Washington, DC.

Jack Smith Shrugs at the Roberts Court

The special counsel merely trims and edits his indictment but hardly starts from scratch.

Jack Smith Shrugs at the Roberts Court | The New York Sun

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Jack Smith Shrugs at the Roberts Court

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