How Jack Smith’s New Case Against Trump Works
Trump’s SCOTUS-created presidential immunity does not protect his attempt to overthrow the 2020 election.
AS SPECIAL COUNSEL JACK SMITH SUMS IT UP in his 165-page immunity brief, the Supreme Court held in Trump v. U.S. that “former presidents are immune from prosecution for core official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and have no immunity for unofficial acts.” Now that the case is back in the hands of U.S. District Judge Tanya Chutkan, Smith has laid out in great detail how he plans to frame the evidence in the January 6th case against Donald Trump as involving “unofficial” conduct—despite the obvious fact that Trump was still president on January 6, 2021. A deeper dive into Smith’s strategy suggests that it just might work.
To begin with, Smith argues, a Supreme Court case called Dennis v. Sparks held that “the burden is on the official claiming immunity to demonstrate his entitlement.” So it’s up to Trump—not Smith—to ultimately show that his actions were immune versus the other way around. This matters because the majority’s opinion in Trump seemed to create mountain after mountain for the prosecution to climb while tossing Trump a magic carpet. Next time this case comes before SCOTUS—and you can be sure that it will, unless Trump wins in November—the Court will have to grapple with Sparks.
Second, quoting the SCOTUS ruling, Smith argues that when a president speaks “as a candidate for office or party leader,” that “may” be a context in which the president is not acting in an official capacity. Smith breaks down the fact-intensive analysis into five categories: (1) Trump’s interactions with former Vice President Mike Pence; (2) Trump’s interactions (as a candidate) with state officials; (3) Trump’s efforts (as a candidate) to organize fraudulent electors; (4) Trump’s public speeches, tweets, and other public statements as a candidate; and (5) Trump’s interactions (as a candidate) with White House staff.
Finally, again quoting SCOTUS, Smith argues as to each of these categories that, even if Trump’s actions were presumptively immune, “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Let’s go through each of those five factual categories to see how the Court’s convoluted test shakes out in the January 6th case, according to Smith.
1. Trump’s interactions with Pence.
In Trump, the Supreme Court held that “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” Therefore, regarding Pence’s role in the congressional certification, which is “a constitutional and statutory duty of the Vice President,” Trump was considered “at least presumptively immune from prosecution” for his attempts to lie and pressure Pence into misusing his role.
Smith argues that even though this is considered presumptively immune, using the final step in the majority’s framework, the executive branch has no role in the certification process (and indeed, the president was purposely excluded from it). So, prosecuting Trump for his “corrupt efforts regarding Pence” does not pose any danger to the functioning or authority of the executive branch. Smith adds that he “is not aware” of any other president throughout history, other than Trump, who has sought to “influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session.” In 22 of the 59 certification proceedings, Smith notes, the vice president hasn’t presided at all.
Moreover, Trump used private actors—such as his private attorney/co-conspirator John Eastman—in his efforts to pressure Pence. During the January 4, 2021 meeting at the White House between Trump and Pence, the White House counsel (although originally invited) was intentionally excluded by Trump, indicating that the conduct was intended to be private. Smith also plans to introduce evidence of private phone calls or in-person meetings between Trump and Pence that support the argument that certain actions taken between them were done in an unofficial capacity as running mates in the post-election period.
2. Trump’s interactions (as a candidate) with state officials.
At trial, the government intends to introduce evidence that Trump contacted state elected officials in his capacity as a candidate to use false claims of election fraud in order to receive their assistance with the charged conspiracies at the time in the electoral process when the states ascertain electors. This includes his communications with the governor of Arizona, Michigan legislators at the White House, the speaker of the Arizona House of Representatives, the attorney general of Georgia, and the Georgia secretary of state. All of the elected officials were fellow Republicans, as Trump made no efforts to contact the individuals holding the same offices in Nevada, New Mexico, Pennsylvania, or Wisconsin, all of whom were Democrats. And as president, Trump “had no official role in the process by which states appointed and ascertained their presidential electors.”
Throughout a telephone call with the governor of Arizona, Trump engaged in partisan electioneering and focused on the vote count in his particular race, with no regard for any other race in the state and a singular focus on claims of fraud that could benefit his electoral prospects. Trump’s November 20 meeting in the Oval Office with Michigan state legislators, the government argues, should also be considered private. Although it did occur in the Oval Office (like many unofficial campaign meetings during the post-election period), the meeting was set up through then–RNC Chair Ronna McDaniel, a private and partisan actor, and the legislators came to it assuming that Trump wanted to discuss claims of election fraud in his own race. The only White House official to join the meeting was Mark Meadows, Trump’s chief of staff who, separate from his official duties, assisted Trump with campaign-related logistics.
Smith and his team argue that Trump’s call on November 22 to Russell Bowers, the speaker of the Arizona House of Representatives, was also unofficial, as no White House officials participated. Rudy Giuliani, in his private capacity, did most of the talking on the call. Smith plans to depict Trump on that call (as with many of his other attempts to persuade state officials) as a desperate candidate seeking any avenue to overturn the election. The same goes for his meddling in Georgia.
Moreover, Smith argues, the Constitution itself “excludes the President from that process to protect against electoral abuse.” By applying federal criminal law to Trump’s behavior, it can ensure that “the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to ‘encourage [state officials] to act in a manner that promotes the President’s view of the public good.’”
3. Trump’s efforts (as a candidate) to organize fraudulent electors.
While the president of the United States “has no official responsibilities related to the organization of voting of electors in various states,” Smith explains, “at oral argument before the Supreme Court, the defendant initially conceded that the plan to submit fraudulent electors directed by the defendant and [Giuliani] was not official.” In his efforts to present false slates of electors to Congress, Trump also engaged with McDaniel—who, again, was the chair of a partisan, political organization—in the manner consistent with a candidate rather than a public official. There is no legitimate executive branch function that’s even remotely related to this type of scheme, Smith insists.
4. Trump’s public speeches, tweets, and other public statements as a candidate.
Just because the president spoke to the public on January 6th, Smith argues, did not mean that the communication is official. What actually matters is—to again quote SCOTUS—“whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,” which is determined by the “content, form, and context” of each communication.
The government argues that all of Trump’s communications in the superseding indictment were made in his capacity as a candidate, and thus not official. It plans to use two of his speeches at trial: his speech at a political rally in Dalton, Georgia, on January 4, 2021, and his speech on the Ellipse two days later.
The speech in Georgia was at the invitation of two Republican U.S. senators who were competing in a runoff election the next day to retain their seats; the trip was paid for by the RNC. Trump was the only executive branch participant at the event and the trip binder for the event included a Hatch Act disclaimer that stated that “employees of the Federal Government may not use their official title or position when participating in a political event.” Smith further underscores the fact that that day’s Presidential Daily Diary describes the event as a “Victory Rally,” which would seem to necessitate a political candidate or party defeating another. Trump’s campaign also sent numerous fundraising emails surrounding the event, confirming the private nature of it. The content of the speech was also of an unofficial nature, delving into political and partisan claims.
As for the Ellipse rally, Smith argues that its “content and context” demonstrate that it, too, was unofficial in nature. For starters, the rally was planned and executed by private party supporters, including the organization Women for America First, which, after starting to plan the rally independent from Trump, moved it from Freedom Plaza to the Ellipse. The organizers and planners of the event were almost exclusively private individuals, and the United States Secret Service itself considered the rally to be “a campaign event.” White House employees of Trump understood it to be a private, unofficial event, with the White House photographer sending an email that provided a “reminder today is a political event.” Furthermore, the White House Counsel’s Office, which customarily reviewed Trump’s official remarks, very pointedly did not review the speech he gave at the Ellipse because it was an unofficial campaign speech. While the White House website made no mention of the speech, his campaign Twitter account advertised it heavily and posted clips during the event and afterwards. The content of his speech was occasionally word-for-word with the speech he gave in Dalton and singularity focused on his own election, jabbing Biden as a candidate.
Smith goes on to point out that one of the tools that Trump used repeatedly for partisan political advantage was his personal Twitter account. He started using this account long before he assumed the presidency and throughout the 2016 election used it for electioneering purposes. While he occasionally did use it for official purposes, he also used it for unambiguous private purposes, like posting a picture of himself golfing with Jack Nicklaus and Tiger Woods. Moreover, the Supreme Court ruled in Lindke v. Freed that “a public official’s personal social-media account can be used for both personal and public business, and . . . a fact-specific inquiry is required to discern into which category a post falls.” Smith analyzes tweets from the @realDonaldTrump account during the time period of the charged conspiracies, finding that of the more than 1,200 Tweets, the vast majority were related to the 2020 presidential election. This is in contrast to Trump’s official Twitter account as President, @POTUS45, which he used to primarily retweet other accounts and only contained 74 Tweets during the time period of the charged conspiracies.
5. Trump’s interactions (as a candidate) with White House staff.
The Hatch Act permits certain White House staffers to “engage in political activity while on duty” but bars them from using any of their official authority or influence to interfere with or affect an election. This allows staffers to wear two hats, as long as they don’t wear them at the same time. Thus, when they are engaging in campaign activities, they are not engaging in an official capacity. Smith accordingly states that the staffers the government intends to call as witnesses should all be treated as operating in their unofficial capacity.
For example, attorney Eric Herschmann, had become a “conduit of information from the Campaign to the defendant,” advising Trump of the “unvarnished truth about his Campaign legal team and the claims of fraud that they and the defendant were making.” Herschmann doubted that Giuliani could mount successful legal challenges to the election. Updating Trump on a near-daily basis on the campaign’s unsuccessful efforts to support the fraud claims, Herschmann even told Trump that if the campaign brought these claims to court, “they would get slaughtered, because the claims are all ‘bullshit.’”
A CAREFUL READING OF SMITH’S MOTION is a stark reminder that Trump and his criminal gang knew that the entire Big Lie was a big lie from the get-go. In fact, they plotted to plant the Big Lie even before the election results were in. To this day, it’s still stunning to realize that the former president and his slew of enablers managed to get as far as they did with their scheme, which only failed in the midst of a bloody insurrection because Pence adhered to his oath to the U.S. Constitution instead of falling on his sword for a craven and treasonous man like Trump. During a private conversation on December 21, 2020, Trump asked Pence, “What do you think we should do?” Pence’s reply: “After we have exhausted every legal process in the courts and Congress, if we still came up short, [Trump] should ‘take a bow.’”
If only.
One other eerie oddity about reading this brief now: It’s a bracing harbinger of the mischief to come in a few short weeks.
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