Special Counsel Jack Smith refocuses Trump indictment

I’d be willing to bet a week’s pay that right about now, Special Counsel Smith is wishing there was a “duh” emoji he could use in the new legal filings he has been caused to make by two courts run by judges with the skills of failing first year law students.  I’m speaking of the superseding indictment Smith filed today in the D.C. election interference case against Trump being overseen by Judge Tanya Chutkan, the one judge he is dealing with whom he hasn’t had to tutor in criminal procedure.

Today’s filing by Smith is aimed at teaching six of the nine justices on the Supreme Court how to read, specifically, how to read the Constitution.  You will recall that earlier this year, the six Republican appointees on the Supreme Court, three of them elevated by Donald Trump himself, somehow imagined into our founding document a privilege for presidents that does not exist in the text of the Constitution – that is, immunity from prosecution for so-called “official acts” Trump took while president. 

I put “Trump” in the above sentence on purpose, because although the Supreme Court decision in Trump v. U.S. purports to apply to all presidents serving now and in the future, the case was brought by Trump and decided by at least three justices who should have recused themselves from the case because of conflicts of interest regarding the plaintiff, that is, Donald Trump.  Trump sought to dismiss the federal charges against him surrounding his actions on and around Jan. 6 seeking to overthrow the results of the 2020 election, which he lost.  In fact, Joyce Vance, the Teste du Tudo Mondo of legal eagles in todays punditsphere, pointed out in her Substack today that the first thing Smith did in his superseding indictment was to reframe the case to focus on Trump and what he did as a candidate for office in 2020.  The previous indictment’s first sentence read, “The Defendant, Donald J. Trump, was the forty-fifth President of the United States in 2020.  The Defendant lost the 2020 presidential election.”  The new first sentence reads, “The Defendant, Donald J. Trump, was a candidate for President of the United States in 2020.  He lost the 2020 presidential election.”

See the subtle difference?  Because the Supreme Court found that official acts Trump took as president cannot be prosecuted because he is immune, the Special Counsel is letting everyone know from the get-go that the person they are indicting was the candidate for president in 2020, and the acts charged in the indictment were taken not by a president, but by a candidate for president.

So, the superseding indictment strips nine pages from the original indictment of Trump relating to acts Trump took when he attempted to use the Department of Justice in his nefarious scheme to overturn the 2020 election results, including the part involving the odious Jeffrey Clark, the environmental lawyer who saw himself so terribly underused at the DOJ that he sought to be appointed by Trump to the top job, Attorney General of the United States, and apparently held that position for a few hours before a squad of lawyers, including Trump’s own White House Counsel and Deputy Counsel and at least two of the top DOJ officials went into the Oval Office and told Trump they would resign along with perhaps another hundred DOJ lawyers if Trump appointed his pet poodle Clark as Attorney General. 

Trump wanted Clark running the DOJ for him because Clark had already attempted to interfere on his behalf in the Georgia election results by drafting a letter stuffed with lies that the DOJ had found “irregularities” it had never found in the Georgia election, and for that reason, the DOJ was recommending that the Georgia legislature empanel a committee to investigate the nonexistent irregularities.  Clark had submitted his ginned-up letter to Jeffrey Rosen and Richard Donoghue, the acting attorney general and deputy attorney general, for clearance to send to the Georgia legislature.  Rosen had refused permission to send it, so Clark went around Rosen’s back and met secretly, he thought, with Trump to propose that he replace Rosen so Clark could, as the new acting attorney general, go ahead and send the letter to Georgia.  One of the lawyers in the Oval Office on the night of Jan. 3, 2021, had been called on his cell phone while jogging and attended the meeting wearing his exercise clothes.

Just to give you some flavor of what went on in the Oval Office that night, only three days before the assault on the Capitol, Trump at one point turned to Rosen and said, “Well, one thing we know is you, Rosen, you aren't going to do anything. You don't even agree with the claims of election fraud, and this other guy at least might do something," referring to Jeffrey Clark, who was already in the Oval Office meeting with Trump when Rosen and Donoghue arrived.

Rosen testified before the Jan. 6 Committee: “I said, ‘Well, Mr. President, you’re right that I'm not going to allow the Justice Department to do anything to try to overturn the election. That's true. But the reason for that is because that’s what's consistent with the facts and the law, and that’s what's required under the Constitution.”

When Trump asked rhetorically, “What do I have to lose?” Donoghue jumped in and told him, “Mr. President, you have a great deal to lose.  I said, ‘Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case, who’s never conducted a criminal investigation. He’s telling you that he’s going to take charge of the department — 115,000 employees, including the entire FBI — and turn the place on a dime and conduct nationwide criminal investigations that will produce results in a matter of days. It’s impossible. It’s absurd. It’s not going to happen and it’s going to fail.’”

Trump asked Donoghue what he would do if he appointed Clark as attorney general.  Donoghue said, “I would resign immediately. I’m not working one minute for this guy.”  Donoghue went on to tell Trump, “Within 24-48-72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?”

Trump ended up not replacing Rosen with Clark, but the actions he took that night in the Oval Office became part of the indictment against him, at least until the Supreme Court decided to tell the world that it was all okay because Trump was president, and acting “officially” like that with members of his Department of Justice, everything he did was perfectly legal. 

The Supreme Court ruled that Trump was immune from prosecution for any acts he took as president with respect to his executive duties, specifically those involving the Department of Justice.  So, just to sum up, the Supreme Court in effect gave a green light to Trump, if he is returned to the presidency, to meet with his new attorney general and order him to file indictments against his political enemies, because that would be an “official act” according to the Supreme Court.  As would be an order from Trump to his Director of Internal Revenue to audit his enemies, including rival politicians, news reporters, even news organizations such as ABC News or MSNBC or any other corporation that wasn’t contributing enough to the Republican Party or lining Trump’s own pockets through “donations” to side organizations Trump might establish through which he could funnel money to himself.  All legal, you see, because he would be acting “officially.”

The superseding indictment maintains the charges against Trump for pressuring Vice President Pence to rule in his favor during the certification of electoral ballots on Jan. 6, and the indictment still includes Trump’s interactions with state representatives attempting to get them to hold fake hearings on fake election fraud.  Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger, asking him to “find” eleven thousand-plus votes so Trump could be declared winner in Georgia, is still part of the superseding indictment as well.

Special Counsel Smith even went so far as to present evidence of crimes committed by Trump to a wholly new grand jury in Washington D.C., so the crimes charged would not be tainted by the previous grand jury that had charged Trump with crimes he is now immune from. 

The whole thing now moves back to the courtroom of Judge Chutkan, who has scheduled a status conference with both sides on Friday.  Trump’s lawyers will, of course, challenge the new charges that are the same as the old ones, minus the “official acts” charges.  Smith’s prosecutors will defend the superseding indictment.  Chutkan will order briefs from both sides, a new hearing will be held on the superseding indictment, Chutkan will rule which charges stand and which do not.  If even one charge stands against Trump – likely, all or most of them will – he will file yet another appeal which will go to the same Supreme Court, with the same Trump-appointed justices hearing the appeal, and a new decision will come down regarding the superseding indictment.

Only then is it likely that Trump will stand trial in federal court in Washington D.C. for the multiple crimes he committed when he ran for president in 2020 and lost the election to Joe Biden and tried to overturn the results of that election.

Stay tuned.  If Kamala Harris wins in November and takes office next January, it is highly likely that Donald Trump will stand trial for his Jan. 6 crimes.  If Trump wins, he will order his new attorney general to dismiss all the charges.  The Supreme Court has ruled that would be perfectly legal under the clause on presidential immunity that exists nowhere in the Constitution.