The expanded brief Special Counsel Jack Smith filed with DC District Court Judge Tanya Chutkan is — on the surface — a document created to bring the DOJ’s criminal case against Donald Trump into compliance with the new legal landscape created by the Supreme Court’s granting of broad presidential immunity.
The new landscape dictates that a President is immune from prosecution for “official” acts — yet it leaves ambiguity as to how those are defined, putting judges like Chutkan in a position to determine, instance by instance, which acts are shaded under that SCOTUS umbrella.
[NOTE: Former U.S. Attorney Chuck Rosenberg said on Morning Joe that “Judge Chutkan has the really hard job implementing the [Supreme Court’s] rule, and [Smith] is trying to give her a path, a roadmap, to implement the rule in a way that they believe means that Mr. Trump still may be prosecuted for all of these unofficial acts as a candidate.”]
Smith’s undertaking then is to claim territory for his prosecution that falls outside that SCOTUS-supplied umbrella, and to emphasize that while providing protections for the President, SCOTUS also essentially ruled that a President can commit criminal acts and be prosecuted for such acts, as long as the crimes at issue were not perpetrated while the President was executing “official” duties.
In acknowledgement of that distinction, the DOJ’s revised, expanded brief accuses Trump of crimes committed as a private citizen and a candidate for re-election, specifically referencing his alleged “private criminal conduct.”
[NOTE: Justice Roberts writing for SCOTUS granted absolute immunity for “core” presidential acts, presumptive immunity for other official acts, and zero immunity for unofficial acts. Roberts gave Chutkan (and Smith) a map, however, asserting some Presidential communications “are readily categorized” as official, whereas allegations “such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions.”]
In his new filing, Smith asserts, according to former acting solicitor general of the United States Neal Katyal, “that when Trump did all this stuff, like pressuring Pence, that wasn’t part of any presidential power in Article 2 of the Constitution. That was a guy who just wanted to keep his job.”
Here’s a summary of the masterful Smith filing in a case that will hold Trump accountable for grave crimes against the nation — unless he becomes president again and pulls the plug. https://t.co/4n0Qww40rD
— Laurence Tribe (@tribelaw) October 3, 2024
Harvard Constitutional Law eminence Laurence Tribe, above, called Smith’s effort to reframe the case in light of the SCOTUS-provided immunity protections “masterful.”
While fulfilling the Supreme Court demand that any official acts be withdrawn from his allegations — and supporting his claims by using the vague allowances provided by Roberts’s map — Smith portrays a private Trump repeatedly making extralegal, far-from-“official” maneuvers to retain power.
The filing is at once a respectful reply to the restrictive immunity framework mandated by SCOTUS and a rebuke to those Justices who appeared to want to shield Trump from accountability.
That number includes the majority of conservative Justices whose opinions differed from that of Justice Ketanji Brown Jackson who, in her dissent, skewered the idea that abiding the law should be viewed as a burdensome hindrance on an effective presidency.
Jackson’s dissent reminded Americans that the “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.”
ln what Katyal called “an exquisitely written document,” Smith illustrates numerous instances he characterizes as Trump working far outside the lines of what could be considered an “official” Oval Office purview.
With more testimony available to him than was available to the January 6 Committee, Smith narrates (again with Roberts’s map in mind) how Trump knowingly and unapologetically endangered his Vice President Mike Pence and how the then-President made frequent statements indicating he knew he had lost the election but that it “didn’t matter.”
Former Trump aide Griffin: I will never not get sick to my stomach thinking about the fact Donald Trump sat in the room off the Oval Office watching Fox News, scrolling through Twitter, seeing police officers being beaten, hearing Mike Pence was moved to a secure location because… pic.twitter.com/8xQczngON8
— Kamala HQ (@KamalaHQ) October 3, 2024
Pundits have called the reveals in the new filing “explosive,” but their impact on public perception is sure to be refracted by the biases of the lenses through which these revelations are seen. Whatever the results as measured by public opinion, Smith’s audience isn’t the public (necessarily), but only Judge Chutkan.
Chutkan must decide, after a response is delivered by Trump’s legal team, whether the DOJ’s reconfigured filing meets the vague standard set by the Roberts Court and clearly demonstrates that Trump’s allegedly criminal activities were executed outside the penumbra of immunity protections.
For that, Chutkan must be convinced that the alleged crimes were committed by Trump in a role Smith portrays as “private” criminal.