Jack Smith is calling the Supreme Court’s bluff.
In the wake of the court’s decision this summer granting Donald Trump criminal immunity for official acts committed while president, Smith has refiled his indictment charging Trump with offenses connected to Jan. 6. This time, he has left out conduct the justices identified as clearly official while leaving in conduct where the justices said there were still complicated issues to be resolved.
No trial will take place before the election. But if Kamala Harris becomes president and the federal district court allows the remaining charges to proceed, Trump could still find himself facing trial for trying to subvert the outcome of the 2020 election. Then the case would wend its way back to the Supreme Court, which would be forced to confront the consequences of its immunity decision.
In a sense, Smith’s decision to refile charges goes back to April, when the Supreme Court heard oral arguments in the immunity case. Then, Justice Amy Coney Barrett walked Trump’s lawyer through a series of elements of the criminal allegations, getting him to admit that each involved private conduct, not official presidential acts. Barrett was trying to create a roadmap for Smith to keep the prosecution alive even if the court issued a sweeping judgment requiring immunity for official acts, as indeed it did.
Concessions at oral argument don’t have the force of law in subsequent criminal proceedings, especially given that those concessions happened before the Supreme Court laid out its new (and extreme) legal standards for presidential immunity.
The main shift in the new indictment is to categorize Trump as having acted criminally in his private capacity as a candidate for office in 2020, not as a sitting president. The shift follows the Supreme Court’s logic in immunizing Trump for official acts. And the new characterization is plausible, given that Trump was indeed trying as a citizen, not as president, to be reelected.
What is lost in the transition to the new formulation is the reality that Trump also tried to use his powers as sitting president to advance his private interests — a key part of the original indictment. Gone are the allegations of Trump conspiring with Department of Justice officials to get legitimate election results thrown out.
Removing allegations that Trump abused his official powers is the only available strategy for Smith since the court has ruled.
The change, however, dramatizes part of what was so wrong with the Supreme Court’s opinion. It simply cannot be part of the genuine official powers of the president of the United States to criminally interfere with lawful election results. Immunizing Trump’s alleged conduct using his presidential powers subverts the rule of law. It all but invites future bad-actor presidents to make sure their criminal acts have an official cast to avoid prosecution.
If Trump is elected, his Justice Department will withdraw the criminal charges against him, and Smith’s refiling will end up in the dustbin of history. When the Supreme Court decided the immunity case at the beginning of July, Joe Biden was still the Democratic candidate, and Trump’s victory seemed very probable. Now, with Kamala Harris as the Democratic candidate, the odds look very different.
But even in the scenario where Harris is president and the case goes forward, the Supreme Court will get the last word. Trump will appeal a decision by the federal district court in Washington to let these charges stand. After passing through the U.S. Court of Appeals for the DC Circuit, such an appeal would end up with the justices. They would then have to apply the rules that they created in July.
Trump could still conceivably face conviction and sentencing in federal court. But don’t count on that happening anytime soon.
Noah Feldman is a Bloomberg Opinion columnist and a law professor at Harvard University.
