Yesterday particular counsel Jack Smith filed a revised, superseding indictment within the federal prison case towards Donald Trump for his makes an attempt to overturn the outcomes of the 2020 presidential election. The revised indictment makes an attempt to deal with the Supreme Court docket’s flawed determination in Trump v. United States, which dominated that presidents have broad immunity towards prison prosecution for “official acts,” however was removed from clear about precisely how far that immunity extends. On an e-mail checklist that we’re each members of, Princeton authorized scholar Kim Lane Scheppele posted a useful abstract of how the revised indictment differs from the unique one, which she has kindly agreed to permit me to reprint right here:
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Complying with the SCOTUS immunity determination, Smith appears to have scrubbed all “official conduct” proof from the case and offered it once more earlier than a brand new grand jury, which introduced forth this indictment. That transfer make it harder for the Trump authorized crew to assert that the case ought to be dismissed as a result of the proof offered to the grand jury was tainted. They’ve clean-teamed this all the way in which down.
- The indictment prices the identical 4 crimes as earlier than.
- However the indictment leaves out Jeffrey Clark as an unindicted coconspirator given what SCOTUS stated about absolute immunity of the president in his conversations with the Justice Division.
- The indictment emphasizes that the opposite unindicted coconspirators are all PRIVATE residents engaged on the marketing campaign or as consultants. And it makes clear that the assorted different actors implicated and whose testimony might be known as upon at trial are NOT speaking with Trump within the scope of his duties as president.
- Essential parts of the case at the moment are attributed to CANDIDATE Donald Trump and Candidate Mike Pence in order that it’s clear that they aren’t interacting as president and vice chairman within the related conversations.
The Simply Safety evaluation by Norm Eisen, Matt Seligman and Joshua Kolb had flagged which elements of the indictment they thought would stand and which might not – and that evaluation was fairly spot-on – see https://www.justsecurity.org/98457/immunity-january-6th-chutkan/ and https://www.justsecurity.org/wp-content/uploads/2024/08/united-states-v.-trump-dC-%E2%80%93-annotated-j6-eisen-seligman-kolb.pdf
For a line by line comparability of the brand new indictment and the unique, see Allison Gill’s submit here. Lawfare and Jacob Sullum of Motive have additionally posted useful analyses of the superseding indictment.
Will the superseding indictment survive inevitable immunity-based challenges? I feel Smith makes an excellent case that the crimes Trump is charged with are non-public acts, not official ones, and that—even when official acts can’t be used as proof (because the Supreme Court docket wrongly dominated), there may be sufficient proof towards Trump to convict on all or a lot of the prices. Justice Amy Coney Barrett’s concurring opinion in the Supreme Court decision offers extra evaluation on why Trump’s conduct right here was non-public, not official (although it’s notable that not one of the different majority justices joined her). I additionally proceed to consider that Trump is probably going responsible on these prices and, if convicted, deserves extreme punishment for causes of each retribution and deterrence.
However the Supreme Court docket ruling is much from a mannequin of readability on a number of key factors related to the case. Amongst different issues, the road between non-public acts and official ones is a nebulous one. And on the subject of official acts exterior the president’s “core powers,” it isn’t clear whether or not there’s a mere presumption of immunity (which might probably be overcome), or whether or not the immunity is absolute. The road between core powers and different official acts can be typically unclear. Thus, it is exhausting to foretell what is going to occur right here, when the problems are reviewed by the trial decide, the DC Circuit and—probably—the Supreme Court docket.
The one factor that’s clear is that the problems are unlikely to be totally resolved earlier than the election on November 5. If Trump wins, he’ll virtually definitely discover a strategy to get the costs dismissed after he takes workplace. If he loses, the case towards him (or no less than a part of it) will proceed, except courts rule that every one the costs are barred by immunity. The latter state of affairs strikes me as unlikely, however not utterly unattainable.
Once more, the Supreme Court docket’s determination is obscure on key factors, and totally different judges are prone to interpret it in another way. If the case returns to the Supreme Court docket, we might even discover that almost all justices disagree amongst themselves on a few of these questions. The ambiguities within the ruling could also be a strategy to paper over these variations, no less than in the intervening time. We might be taught extra about what the justices suppose on these points, as this authorized battle continues.
