But Smith’s zealousness might turn out to be self-defeating. His case regarding Trump and the Jan. 6, 2021, riot at the U.S. Capitol, filed last year, is now caught up in a pretrial appeal over whether the president has immunity from prosecution for “official acts.” The Supreme Court will hear oral argument on April 25, and the justices probably won’t decide the question before June. Even if the court rejects Trump’s claim, Smith’s chances of getting to trial before the election have diminished.
This holdup is on the Justice Department. Not only did it delay charging Trump for 2½ years after he left office (perhaps because of Attorney General Merrick Garland’s ambivalence about the novel legal theories used), but when the department did finally bring Jan. 6 charges, it elected to charge Trump for his official acts as president, rather than his private acts as a candidate.
Apparently, this wasn’t necessary. In his Supreme Court brief in the case, filed Monday, Smith — apparently fearful that the Supreme Court might recognize some presidential immunity for official acts — says that allegations of Trump’s “private misconduct are more than sufficient to support the indictment.” Oh. Then why insist in the first place on charging Trump for official conduct, inviting a Supreme Court showdown over the scope of immunity?
To review: There’s no serious debate that former presidents can be prosecuted for acts taken in their capacity as private citizens — shooting someone on Fifth Avenue, for example. However, the Supreme Court has recognized various forms of immunity for public officers acting in their official capacities. In the 1982 case Nixon v. Fitzgerald, the court said that presidents can’t be sued for acts they took in their official capacity. Trump argues that this principle should extend to criminal prosecutions as well. The Supreme Court has never decided the question before because no president has ever been criminally prosecuted for official acts.
Trump’s effort to overturn the 2020 presidential election involved a mix of private conduct and official acts. Smith’s Supreme Court brief notes that Trump “is alleged to have conspired with four private attorneys and a private political consultant in his effort, as a candidate, to subvert the election results” — such as by urging the creation of alternate elector slates in states he lost. Smith argues, persuasively, that these and other allegations fall “well outside of any conception of presidential official acts.”
In other words: If he had wanted to, Smith could have brought his election-interference case as an indictment only of Trump’s acts as a candidate seeking reelection. Trump would have appealed, but the Supreme Court would have been less likely to intervene. Smith would have been more likely to get the trial and conviction he desperately wants — before Trump’s possible reelection.
Yet Smith insisted on charging Trump for his official acts, asking the Supreme Court to confront an epochal constitutional question. The clearest example of an official act charged in the indictment is the way Trump tried to use the Justice Department to investigate voter fraud. Control of Cabinet departments is a presidential power. Trump’s pressure on Vice President Mike Pence surrounding the electoral vote count might also qualify.
A Jan. 6 indictment that did not charge Trump for official acts would have been narrower. The resulting trial would not have been as dramatic as the Jan. 6 committee hearings. And it wouldn’t have given the Biden Justice Department the satisfaction of punishing Trump for his abuses of presidential power. But it probably would have moved more quickly through the court system, and — according to Smith — would be sufficient for a conviction.
Biden’s Justice Department bet instead on a flashier but less strategic approach. The resulting appellate delays were predictable. If Trump makes it to November without a Jan. 6 conviction, he’ll have Jack Smith to thank.
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