The special counsel’s superseding indictment of Trump likely won’t pass muster

I totally disagree with the Supreme Court’s Trump-friendly decision in the immunity case. I believe that the text and structure of the Constitution, as well as the contemporaneous debates during its drafting, make clear that the president is not above the law. He is its servant, not its master.

But I accept the decision as the law of the land, as apparently does Special Prosecutor Jack Smith.

Thus, while I admire Smith’s deft attempt to maneuver his way through the labyrinth of Supreme Court verbiage, and prosecute Trump for those elements of his Jan. 6 conduct that were private and not official, I do not think it will likely work. It only pours old wine into new bottles.

Smith’s original 45-page indictment, filed in D.C. a little over a year ago, identifies Trump as the “forty-fifth President of the United States and a candidate for re-election in 2020.” The superseding 36-page indictment, presented to a new grand jury and filed Aug. 27, defines Trump as “a candidate for President of the United States in 2020” who “lost the 2020 presidential election.”

This is an obvious attempt to sever Trump’s official acts as president from his private acts, for which the Roberts court said he would have no immunity. Smith wants to skirt the obvious truth that the office Trump occupied had everything to do with his efforts to prevent the peaceful transfer of power.

The distinction is born out of the Blassingame case in the D.C. Circuit, a civil action that severed conduct as “office seeker” from conduct as an “office holder.” The appeals court held that Trump might be liable for money damages because his Jan. 6 conduct was as a candidate for the presidency rather than as acts of the presidential office itself.

Smith invited the Supreme Court to adopt this distinction, but it declined to do so, although some of the justices found the idea intriguing at oral argument. No wonder — Blassingame is unlikely to apply in a criminal context. The distinction is hard to draw, because everything a first-term presidential office holder does — like sending a drone to Iraq, for example — could be cast as the act of an office seeker calculated to impress the electorate that he is a no-nonsense president.

Trump was quick to trash the new indictment in light of the Supreme Court immunity decision. “Smith rewrote the exact same case in an effort to circumvent the Supreme Court Decision,” he lamented. The superseding indictment, he said, was “the single greatest sabotage of our Democracy in History.”

While Trump’s whining is exaggerated, as most of his whinings are, he does have a point. Can Smith, as a legal matter, sidestep immunity with a new indictment by calling Tweedledee Tweedledum?

The superseding indictment shifts the identification of those who allegedly conspired with Trump to steal the election. It alleges that all were acting in a private capacity, and were not government officials at relevant times. It calls some of the six co-conspirators — identified by number but said to be Rudy Giuliani, John Eastman and Sidney Powell — as “private” attorneys residing outside the government who were not “government officials during the conspiracies.” Another co-conspirator is identified as a “private political consultant.”

Georgia was a key state in assuring Biden’s electoral victory. One of the most lurid episodes in the election conspiracy was the pressure on the Georgia State Senate to accept Trump’s bogus election fraud claims. This presenter of the phony claims was previously identified as an “agent of the defendant.” Now he is a “campaign attorney.” Trump’s White House Chief of Staff, Mark Meadows, is alleged sometimes to have “handled private and campaign-related logistics for the defendant.”

Then there is the infamous Trump telephone call to the Georgia Secretary of State importuning him to “find 11,780 votes.” Trump’s lawyers argued before the Supreme Court that these were official acts for which Trump would be immune. The court’s inclination was to hold Trump immune for this, as the president should be free to “discuss such matters with state officials,” but its opinion left final decision for another day. Smith opted to leave the Georgia parts of the conspiracy in the original indictment almost undisturbed.

Another feature is Trump’s use of the Justice Department to try to overturn the election. Here Trump is said to have enlisted a minor official, Jeffrey Clark, whom he wished to appoint attorney general after Bill Barr quit. Chief Justice Roberts was clear that Trump was “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

That Trump’s motive underlying the discussions was to stage a coup and overturn the valid results of the election was, according to Roberts, irrelevant. So Smith bowed to his defeat, as he had to, and left on the cutting-room floor most references to the Justice Department. Co-conspirator number 4, said to be Clark, has been eliminated from the indictment altogether.

And don’t forget Trump’s effort to pressure Vice President Mike Pence into delaying certification of the vote in the Electoral College. The court said that communications with the vice president were “presumptively immune” despite the fact that the president plays no role in the certification of the vote. Smith takes this issue head-on, and claims he can overcome the presumption by proving that the conversations were “focused on Trump’s retaining power.”

In short, Smith has made Trump’s 2020 campaign for president the star of the show. The superseding indictment is peppered with references to the Trump campaign as opposed to Trump the president. Smith charges that Trump “used his campaign to repeat and widely disseminate” spurious claims of election fraud.

So what’s new? Smith contends that Trump’s actions on Jan. 6 couldn’t be official because they were criminal acts accomplished in an election campaign. The most remarkable addition to the indictment is the claim that Trump “continued his lies through the day of certification” up to his “Campaign speech at a privately-funded privately organized political rally held on the Ellipse,” where he called upon the mob to march to the Capitol. Trump’s identity as president was an essential element of this incitement. The rally was certainly no prayer meeting.

I seriously doubt that this legal legerdemain will avail Smith much as District Judge Tanya Chutkan distills the wheat from the chaff, pouring the superseding indictment through the pinhole sieve of the Roberts immunity opinion.

If Trump wins the election, the case is doomed; he will order the Justice Department to dismiss it. If he loses the election, the case is gasping for breath.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.