Honig: Jack Smith picked 'safest' course

(CNN) — Special counsel Jack Smith had to take a hammer to some parts of his election subversion case against former President Donald Trump after the Supreme Court’s sweeping ruling that Trump had at least some presidential immunity in the prosecution.

But with the superseding indictment handed up by a grand jury on Wednesday, prosecutors also used a scalpel to reshape their allegations, making subtle edits, along with big changes.

Trump’s infamous Rose Garden video from January 6, 2021 – and the efforts by others leading up to it to convince to Trump he needed to tell the Capitol rioters to leave – has been removed from the indictment. Smith, however, has added new details about Congress’ certification process and what role Vice President Mike Pence was playing in it, in attempt to bolster other aspects of the case.

The high court’s 6-3 ruling – which said that Trump had at least presumed immunity for his official acts as president and that for some “core” acts, that immunity was absolute – made clear that Smith would have to carve out his allegations about Trump’s attempts to use the Justice Department to interfere with the election. Chief Justice John Roberts’ majority opinion did not give Smith clear directions about how he could revamp the indictment, which brought obstruction and conspiracy charges against Trump.

With the new version of the indictment, Smith made nips and tucks throughout – some easy to digest, others more nuanced – in the hopes that he has met the Supreme Court’s test while preserving enough of the case that a jury could be convinced to convict.

Many of prosecutors’ edits had to do with emphasizing that Trump was acting as a political candidate, rather than as president, in his alleged efforts to overturn the election.

It appears, according to Anthony Michael Kreis, a constitutional law professor at Georgia State University, that Smith is “really trying to make a clean case for why this is indictable and why these indictable offenses all stem from conduct that Donald Trump did as a candidate and not as president in any formal or official capacity.”

Here’s a look at how Smith’s reshaped the way he’s presenting his case:

Removed: Briefings Trump received from his official advisers

The Supreme Court’s ruling was particularly damaging to Smith’s case because of how the conservative majority limited the kinds of Trump conduct prosecutors could charge and the evidence they could use to prove any allegations not shielded by immunity. Roberts rejected prosecutors’ arguments that they can use evidence related to a president’s official acts to help prove their allegations about his unofficial conduct. That means any evidence stemming from conduct Trump arguably was engaged in his official capacity as president is unusable for prosecutors.

That could explain why Smith cut several episodes where Trump was briefed by US officials tasked with advising the president. In an early section in the indictment detailing all ways Trump was informed his election fraud claims were bogus, gone are the accounts of pushback he received from US intelligence officials, his White House lawyers, the Justice Department and his vice president.

But Smith kept other examples that did not involve federal executive branch officials: court rulings rejecting the fraud claims, statements from state officials rebuking Trump’s allegations, and what Trump was told by his campaign staff.

In other places in the indictment, Smith has removed evidence apparently derived from conversations Trump was having with his presidential advisers.

Jeff Clark, the Justice Department official who tried to send a department letter seeking to interfere with the certification of Georgia’s election results, is no longer listed as a co-conspirator, and in several places, references to any DOJ-related activity are removed.

In describing the other five co-conspirators that remain in the case, prosecutors added new language noting that they are all “private” attorneys or political consultants – “none of whom were government officials.”

Removed: Efforts to get Trump to tamp down the riot

In the timeline Smith has laid out for how the January 6 attack on Congress unfolded, now missing are the efforts by Trump’s advisers and others to convince the president that he needed to tell the rioters to leave the Capitol. Trump’s various responses to the requests are now also gone, including his mid-afternoon tweets that told the rioters to “remain peaceful” without explicitly asking them to leave. Prosecutors also removed from the indictment their description of the video message he filmed from the Rose Garden later that day calling the rioters “very special” while finally asking them to exit the Capitol.

Also gone is the account of Trump’s mid-riot call with then House Minority Leader Kevin McCarthy, in which Trump allegedly told McCarthy that the rioters were more upset about the election than McCarthy was. Prosecutors additionally removed remarks Trump allegedly made in the outer Oval Office while watching TV coverage of the riot, that “this is what happens when they try to steal an election.”

The edits may reflect a belief by prosecutors that deliberations around how a president should respond to an assault on the legislative branch are at the heart of official presidential duties that the Supreme Court shielded off with its ruling.

Reworked: The Pence pressure campaign

Perhaps the boldest decision Smith made in retooling his indictment was to keep his allegations about the Pence pressure campaign. The Supreme Court said that alleged conduct was “presumptively immune” and put the burden on prosecutors to prove that criminal liability for those acts wouldn’t intrude on a president’s Executive Branch authorities.

In response, Smith tried to distinguish Trump’s January 6-related interactions with Pence from the role a vice president plays as a president’s close adviser and potential replacement.

The new indictment repeatedly describes Trump’s conduct towards Pence as stemming from Pence’s position as his running mate and as the president of the Senate, who would preside over Congress’ certification of the election results – a process separate from the Executive Branch in which Trump had no involvement.

“The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election,” prosecutors wrote, in a new line in the indictment. “All of the conversations between the Defendant and Vice President described below focused on the Defendant maintaining power.”

To reinforce the distinction between Pence’s typical vice presidential duties and what he was doing as president of the Senate that day, Smith added new details about what Pence was doing as part of his ceremonial role presiding over the congressional proceeding.

He describes, for instance, how Pence, roughly an hour before the Capitol was breached, “opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington.”

Added: Details about the electoral certificates allegedly targeted by Trump’s January 6 conduct

There is potentially a second purpose for the new language detailing what the congressional certification process entailed. Smith may be seeking to bolster his case in light of a separate Supreme Court ruling handed down this summer that curtailed the use of an obstruction charge that’s been brought in several rioter prosecutions, as well as in the indictment against Trump.

The court ruled that the relevant statute was only applicable for obstructive conduct aimed at impairing documents or other physical materials used in an official proceeding. The effect of the ruling is that, for a charge under the statute to be successfully brought, prosecutors will need to connect the obstructive conduct to records or other objects that are used in an official proceeding like Congress’ certification ceremony.

Roberts’ opinion for the majority left the door open for allegations that a defendant falsified documents, which would seem to cover the fake electors’ scheme in Trump’s case. But prosecutors also seem interested in framing the attack on the Capitol as another attempt to impair Congress’ use of the documents in the certification proceeding.

A new line in the superseding indictment details how, during the breach, congressional staffers removed from the Senate floor the certification documents that Congress was considering during the ceremony. In prosecutors’ account of Trump’s rally speech that preceded the assault, they also added Trump remarks that were directed at Congress’ counting of electoral votes, with Trump telling the crowd that “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

Reworked: Trump’s use of Twitter and how he disseminated claims of fraud

Much of Trump’s activity on Twitter – the social media platform now known as X – from the day of the riot has been removed from the indictment. But prosecutors held on to one tweet blasting Pence for his lack of “courage” that Trump sent after the crowd had broken into the building and the Senate had recessed. Prosecutors added that Trump sent that tweet “personally, without assistance,” and also newly note that he spent much of the afternoon watching the TV coverage from his dining room while “reviewing Twitter on his phone”

Other Trump-era cases have weighed whether Trump’s activity on Twitter while he was president amounts to official activity. Perhaps with this in mind, Smith included a new description of Trump’s use of Twitter, noting that he “regularly” used Twitter “for personal purposes” — including for his false fraud claims, for his pressure campaign on Pence, and to “leverage the events at the Capitol on January 6 to unlawfully retain power. “

Because another round of appeals is likely, it will be many months and potentially years before it’s clear whether Smith succeeded in his attempts to salvage the prosecution. And if Trump wins this November, he is expected to end the case before it can get that far.

According to Kreis, the retooled indictment is a sign that Smith is seeking to avoid using evidentiary mini-trials to decide what parts of his case can stay in. Such a process would have potentially allowed prosecutors to air their evidence before the election, but would have also given Trump and his defense team a “heads up as to what’s coming their way.”

“It seems to me that Jack Smith has made the decision that the conviction is equally as important as much of it is kind of getting some of the basic evidence out there for public dissemination,” Kreis said.

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