Jack Smith is prosecuting candidate Trump, not President Trump

The Supreme Court made a mistake for the ages when it granted presidents immunity for nearly everything done in office.  

The trial judge in this case against Trump, U.S. District Judge Tanya Chutkan, now has an opportunity to restore the principle that no man is above the law. She can do so by upholding Special Counsel Jack Smith’s revised indictment of Donald Trump for obstruction of the 2020 election. This prosecution should survive because it is candidate Trump, not President Trump, who is being held legally accountable.

Although the Supreme Court’s pro-immunity justices did not acknowledge the exclusively political nature of Trump’s role in Jan. 6, they were not necessarily oblivious to the reality that Trump was acting to save his own political hide on Jan. 6, not the fate of the republic. 

Indeed, in his opinion for the court, Chief Justice Roberts may even have recalled his time as associate counsel to President Reagan, when he wrote that while “most of a president’s public communications are likely to fall comfortably with the outer perimeter of his official responsibilities,” there “may, however, be contexts in which the president … speaks in an unofficial capacity — perhaps as a candidate for office or party leader.”

There are such contexts, to be sure. The distinction — between official and political — is a line that every White House counsel’s office draws regularly for the president.

When I served as associate counsel to President Reagan (very shortly after the chief justice did) the White House Office of Political Affairs was one of my internal “clients.” I advised that office about how to keep the president on the legal side of the line with the benefit of detailed guidance from a formal opinion issued to the White House by the Department of Justice’s Office of Legal Counsel. 

Scrupulous compliance with this opinion, and observing the political versus official distinction, was critical to the White House because expenses for “political” activities could not be paid from congressionally appropriated funds. They must be paid instead from campaign or political committee coffers. 

Simply stated, it is illegal for the White House to spend appropriated funds on election activities.

In the case of the president, it can be challenging to draw the distinction because most of his or her activity will be mixed — there will be a combination of official and political motives. Much of a president’s job involves political considerations: jawboning Congress, selling the administration’s agenda to the public, and setting up policies to promote the president’s reelection and historical legacy. 

However, as Office of Legal Counsel Assistant Attorney General Ted Olson (a conservative luminary) opined in a 1982 memo to the White House, some things even the president does are “entirely political,” and thus, constitute personal, non-official activity.

So, what does the “entirely political” category entail? Well, as Olson stipulated, it is campaigning and electioneering for political candidates. This includes a president’s campaigning and electioneering for themselves.

The “political” category applies precisely to Trump’s Jan. 6 efforts to overturn the election. The facts alleged in the special counsel’s superseding indictment concern the former president’s campaign to have himself deemed the country’s reelected president — by hook or by crook.  

Trump’s electioneering for reelection was political, not official. The lawsuits he filed alleging election fraud (falsely and unsuccessfully) were political. His Jan. 6 rally on the Ellipse was political. His pressure on Vice President Mike Pence to disallow Electoral Votes against him was political. 

It was all quintessentially political because the goal of the activity was to be declared the winner of an election. The fact these tactics were illegal does not make them any less political than the lawful methods Trump tried to get reelected, such as trying to persuade voters he was the better candidate and petitioning the courts to decide he won the election. 

A president’s campaign to reelect himself is never official business no matter what form it takes. And, by the way, the fact the president flies Air Force One to political rallies and fundraisers or is driven to them by the Secret Service, for security reasons, does not convert such campaign events into official ones.

The Supreme Court’s obtuseness to the obviously political nature of Jan. 6 contrasts starkly with its approach in an earlier case involving alleged Trump administration malfeasance. In a decision about why a “citizenship” question was being added to the 2020 census, Chief Justice Roberts observed, poignantly, that the court is “not required to exhibit a naïveté from which ordinary citizens are free.” 

Yet, in its immunity decision, the majority was blind to what anyone else could plainly see, that Trump’s attempted subversion of the election was “entirely political.” The fact he co-opted some government officials to collude with him on staying in office did not convert his office-seeking into official activity any more than relying on the Secret Service to drive him to the Ellipse or pressuring them to take him to the Capitol.

Judge Chutkan now, like the Supreme Court in the census case, need not be naïve. While the court’s near blanket immunity for presidents was improvidently granted, Jack Smith’s indictment concerns “entirely political” conduct. It should easily pass muster under the narrow legal accountability the court preserved for presidents. 

When a Chutkan decision against Trump is ultimately appealed to the court, one hopes the justices may avail themselves of the opportunity to rein in immunity and assure a sterner dose of constitutional checks and balances to the most powerful person in the world, the U.S. president.

Alan Charles Raul served as associate White House counsel to former President Reagan. He currently practices law in Washington, D.C., and serves as lecturer at Harvard Law School, and as board secretary of the Society for the Rule of Law.