Jack Smith Loses Half His Indictment

Will He Be Able To Prosecute The Remaining Half?

The Supreme Court may just have given Jack Smith his worst nightmare: A case that he cannot possibly try before the November election, and which will have little relevance after the election regardless of the electoral outcome.

In a historic 6-3 ruling, the justices said for the first time that former presidents have absolute immunity from prosecution for their official acts and no immunity for unofficial acts. But rather than do it themselves, the justices ordered lower courts to figure out precisely how to apply the decision to Trump’s case.

The outcome means additional delay before Trump could face trial in the case brought by special counsel Jack Smith.

The immunity claims (Trump v United States¹), readers will recall, arose in connection with the four-count indictment Smith secured against Trump in loose connection with the now-infamous “J6” riot at the nation’s capitol. As I stated at the time, Smith fundamentally indicted Donald Trump for daring to question the “official” pronouncements of the State.

Smith Indicts Trump For Doubting The Deep State

The Court’s immunity ruling is actually the second ruling in the past week which is likely to cause heartburn for the Special Persecutor Proscutor. In another J6 case, Fischer v United States², the Court explicitly limited prosecution under 18 USC §1512(c)(2) to acts specifically involving tampering with or destroying documents or other evidence:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.

Going by a plain reading of Fischer alone, it seems likely that Count 3 of the indictment will have to be dismissed, as Smith does not appear to be claiming any effort by Donald Trump or any other party to impair “the availability or integrity for use in an official proceeding” any documents or other objects related to the certification of the electoral votes. Even if Smith could prove Donald Trump intended to disrupt that certification process on January 6, 2021, that intention does not involve impairing the availablity or integrity of the electoral returns to be certified.

If Count 3 falls by the wayside, Count 2 may similarly be subject to dismissal—if the facts do not supprt a charge of obstruction there can be no conspiracy to commit obstruction.

Yet there is a further problem for Jack Smith. Without counts 2 and 3, much of Trump’s public statements and tweets as set forth in the original indictment lose their criminal characterization. The substance of the criminal charges Smith has preferred against Donald Trump at that point fundamentally devolve to various and sundry efforts to challenge the legitimacy of state certification of electors, attempts to organize alternate slates of electors for those states, and present those slates to the Vice President for consideration in the certification process which took place on January 6, 2021.

Did Trump’s communications with the Vice President and the Acting Attorney General constitute and “official” communication for which there is absolute immunity? The Court at the very least acknowledges that this may be the case:

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

At least some of the conduct upon which Smith wishes to build his case the Court explicitly affirms to be of an official nature—and even Smith’s own prosecution team conceded as such.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.”

The Court explicitly affirmed that Donald Trump cannot be prosecuted on the basis of any communications with the Acting Attorney General or any effort to have the Department of Justice investigate claims of vote and ballot fraud.

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Because Donald Trump has absolute immunity for his official communications and acts as President, the “Manner and Means” by which Smith purports to establish Count 1 of the indictment loses one key element (sub paragraph 10(c)). Because communications with the Vice President over electoral certification may similarly fall within the ambit of official Presidential duty, sub-paragraph 10(d) of the indictment is likewise on thin ice.

Sub-paragraph 10(e) also disappears because of the Court’s ruling in Fischer. Without a prosecutable charge of obstruction or conspiracy to obstruct (Counts 2 and 3), that conduct is arguably non-criminal, and non-criminal acts do not a conspiracy make.

The problem for Smith is that, without the last three portions of Paragraph 10 of the indictment, the first two sub-paragraphs are, by Smith’s own admission, a perfectly legitimate exercise of Free Speech by Donald Trump. As Paragraph 3 of the indictment explicitly concedes:

The Defendant had a right, like every American , to speak publicly about the election and even to claim , falsely , that there had been outcome -determinative fraud during the election and that he had won . He was also entitled to formally challenge the results of the election through lawful and appropriate means , such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures . Indeed, in many cases , the Defendant did pursue these methods of contesting the election results . His efforts to change the outcome in any state through recounts , audits , or legal challenges were uniformly unsuccessful.

Even if, as Jack Smith has alleged, Donald Trump knew absolutely that the claims of ballot fraud were false, there was no criminal act in merely making such a false statement. On that basis alone, sub-paragraph 10(a) of the indictment cannot stand in isolation as the pretext for a criminal complaint:

The Defendant and co - conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant's opponent, Joseph R. Biden, Jr. , to electoral votes for the Defendant . That is, on the pretext of baseless fraud claims , the Defendant pushed officials in certain states to ignore the popular vote ; disenfranchise millions of voters ; dismiss legitimate electors ; and ultimately , cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.

Without the final sub-paragraphs—which are now in serious legal jeopardy if not voided altogether—does Jack Smith even have a case to prosecute?

How much of a case Smith has left is not a matter which will be known any time soon. Because the Court upheld in part Trump’s immunity claims, the Court vacated the ruling of the DC Circuit Court of Appeals on Trump’s motion to dismiss, and remanded the motion back to the lower courts for a rehearing.

The next round of litigation will be to divide Trump’s actions after the 2020 election into official and unofficial acts, so that absolute immunity can be applied to the official acts while preserving potential criminal liability for the unofficial acts.

Expect that round of litigation to also wind up before the Court to determine more precisely what is and is not “official”, even though Chief Justice Roberts provided guidance for the lower courts in his ruling.

This rolls Trump’s motion to dismiss all the way back to the original trial court. Briefs will have to be updated and re-filed, and likely re-argued. The trial court will have to rule on which parts of the indictment must be dismissed (and the Court’s ruling makes it clear that at least some elements of the indictment will be dismissed), and we may reasonably expect Donald Trump to appeal those portions of the indictment not dismissed.

The DC Circuit Court of Appeals will then have to apply the Court’s guidance on the motion, and that will likely raise another appeal to the Supreme Court.

The lower courts within the DC Circuit could conceivably decide to rule on the motion on an expedited basis, although Chief Justice Roberts puts several clear warning signals in his opinion to dissuade the lower courts from rushing the process, as when he criticizes the dissenting opinions that want to declare all of Trump’s acts and communications unofficial:

Despite the unprecedented nature of this case, the significant constitutional questions that it raises, its expedited treatment in the lower courts and in this Court, the lack of factual analysis in the lower courts, and the lack of briefing on how to categorize the conduct alleged, the principal dissent would go ahead and declare all of it unofficial.

If the lower courts do not wish to incur a second reversal by the Supreme Court, they will scrutinize the distinction between Donald Trump’s official and unofficial acts extremely carefully, no matter how long that process takes.

Even if a portion of Smith’s indictment survives all the scrutiny (and there is a distinct possibility that none of it will, as the removal of signature portions of the indictment could cause the remainder to collapse like a house of cards), the likelihood that scrutiny allows Smith to bring the case to trial before the November election is at best remote.

Intriguingly, while the Court found support for limited claims of immunity for official acts, the Court rejected the premise that I have argued previously, which is that an impeachment is a necessary predicate for indicting a sitting or former President for actions taken while in office.

Trump Should Have Been Impeached And Only Then Indicted

Roberts dismisses this theory of impeachment absolutely.

The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ibid. (emphasis added). The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted.

However, I am uncertain if Roberts appreciates the ramifications of his own logic.

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

We need only look at Gerald Ford’s controversial pardon of Richard Nixon in 1974 to see that, without impeachment, the political controversies which necessarily attach to any effort to prosecute a former President make such prosecution difficult if not well nigh impossible.

While Hamilton is arguing for why the Senate should be the country’s court of impeachments, his arguments also go to why impeachment is a necessary predicate for criminal prosecution of high public officials and the President especially: address an officeholder’s political situation before addressing his legal situation.

Why do it this way? One argument might be that a public official, especially in an highly divisive time (such as the present time), might not get a fair trial otherwise.

President Ford had a similar concern and reached a similar conclusion in his decision to pardon Richard Nixon after the latter had resigned the Presidency in 1974. Such was the logic he advanced in his remarks made upon signing the pardon

With Jack Smith’s case against Donald Trump substantially impaired by the Court’s ruling on Presidential immunity, the legal reality is that, absent a Congressional will to impeach even a former President for his conduct in office, any misconduct by the President arguably remains impervious to prosecution.

In both the case of Richard Nixon and Donald Trump, an impeachment proceeding and a respect for its verdict would have resolved all controversies before any criminal charges could be levied. We should remember that this was the case for Bill Clinton when he was impeached for perjury in 1998. The Senate acquitted him and he was not further prosecuted, although the State of Arkansas did take his law license.

Even if impeachment need not be a strict legal requirement, we see now in the case of Donald Trump that it is politically desirable. Had Donald Trump been impeached and convicted, there would be no controversy today over the indictments. Had Donald Trump been impeached and acquitted, there would be no indictment.

Jack Smith did not seek an impeachment of Donald Trump, and as a result he is now facing a case that is continuing to collapse and may not even survive until the election. Already it is highly likely that at least half of the indictment stands to be dismissed. It will take further rounds of litigation and appeals to determine if the remainder can hold together as a coherent prosecution.

Yet this was always where this case was headed. We must not forget that the United States faced similar controversy in 1876, in the contested election of President Rutherford B. Hayes, which carried similar allegations of ballot fraud, similar efforts by Democrats and Republicans to assert competing slates of electors, but which result in a political resolution by means of an electoral commission rather than an egregious and shameless political persecution of one candidate by the opposing party.

History Proves Trump Indictments Persecution Not Prosecution

We have been here before. We have been here many times before. The Republic has not needed to resort to political prosecution and persecution to manage such controversy in the past. There was never any reason to resort to it now.

The unavoidable reality of Constitutional governance is that political differences are not crimes, and they should never be regarded as crimes.

Jack Smith ignored this reality. Having sown the wind of political persecution disguised as prosecution, he is now reaping the whirlwind of an untenable and collapsing prosecution that will have failed in virtually every particular.

Jack Smith has lost at least half of his case against Donald Trump. It remains to be seen what he will be able to do, if anything, with the remaining half.

1. Trump v. United States, 603 U.S. ___ (2024)

2. Fischer v. United States, 603 U.S. ___ (2024)