Jack Smith’s New January 6 Indictment: Custom Built To Convict Trump If Kamala Harris Wins

Special Counsel Jack Smith’s unveiling of a new and streamlined indictment in the January 6 case underscores that the dogged prosecutor shows no sign of relenting in his pursuit of a criminal trial for President Trump. The new charge sheet, whose impetus was the Supreme Court’s ruling on immunity, is leaner – and possibly sharper – than its predecessor. The special counsel has trimmed evidence that he reckons now enjoys total protection, like Trump’s efforts to enlist the Department of Justice to overturn the results of the 2020 election. The presiding judge, Tanya Chutkan, has set a deadline of this Friday for both the government and the Trump team to present their proposals for how the case ought to move forward. A hearing on September 5 will further clarify the trajectory to trial. The Supreme Court tasked Judge Chutkan with determining what evidence gathered by Mr. Smith can survive its generous grant of presidential immunity. That Mr. Smith is confident his January 6 case is delayed but not derailed can be adduced by his retention of all four charges from his original indictment. They now bear the imprimatur of a new grand jury. These allege overlapping conspiracies to deprive Ameroicans of their right to have their vote counted, to defraud the country, and to obstruct the certification of President Biden’s victory. Mr. Smith explains that the new indictment “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings.”The special counsel custom built his new indictment to sail through the scrutiny the Supreme Court mandated that Judge Chutkan apply to his prosecution of Trump. The justices ruled that he is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” so reference to those has been cut. Also dropped is a reference to one unindicted co-conspirator, Jeffrey Clark, a senior Department of Justice official and Trump loyalist who worked with the 45th president on legal strategies to cast doubt on the 2020 election results. Much of the material concerning interactions between Trump and the Department of Justice was first assembled by the January 6 select committee, a tribunal dominated by Democrats that mounted a case — in the House of Representatives — against the former president. Mr. Smith incorporated that work into his indictment. That committee, though, was not bound by the same rules of evidence and immunity that now constrains Mr. Smith. Trump will likely counter that Mr. Smith has failed to digest the Supreme Court’s demand 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.” The special counsel notably retained reference to Vice President Pence despite the justices’ insistence that interactions between him and the vice president are presumptively immune.Mr. Smith tries to signpost his adherence to the Supreme Court’s new dispensation by repeatedly invoking “private” to describe the alleged acts and the role of co-conspirators like Mayor Giuliani and the lawyers Sidney Powell and Kenneth Chesebro, who were not government employees. The special counsel also calls Mr. Pence Trump’s “running mate,” as if to highlight his identity not as the holder of a constitutional office but rather as a campaign functionary, bereft of immunity.Most significant of all is the shift from reference to Trump as “the 45th President of the United States and a candidate for re-election in 2020” to “a candidate for president of the United States in 2020.” The Nine, though, mandated that more than just a change in verbiage is required for Mr. Smith to carry his burden. Instead, Chief Justice Roberts ordered that such an inquiry must be “fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons.” While Mr. Smith hopes that his new indictment charts a glide path to trial, Judge Chutkan could be wary of issuing too rapid a rubber stamp. The Supreme Court’s majority opinion worried over the “expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties,” suggesting that they see no need for speed with respect to this unprecedented prosecution of a former president. There will be no trial before the election in this case, nor in Mr. Smith’s other prosecution of Trump, for stashing classified documents at Mar-a-Lago. That means that if the 45th president becomes the 47th, he could fire Mr. Smith and order a new attorney general to dismiss the charges.No indictment, no matter how shrewdly crafted, would be able to survive Trump’s return to the White House. If Vice President Harris wins, though, both prosecutions could hit their stride in the coming months and years. What is still to be seen is whether Mr. Smith’s tenacity in the months before the election aid Ms. Harris or rallies Trumps’ supporters anew.

Jack Smith’s New January 6 Indictment: Custom Built To Convict Trump If Kamala Harris Wins

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