But Smith’s zeal may prove self-defeating. His case against President Trump and the Jan. 6, 2021, riot at the U.S. Capitol is currently embroiled in a pretrial appeal over whether the president has immunity from prosecution for “official acts.” The Supreme Court will hear oral arguments on April 25, but the justices likely won’t decide the issue until June. Even if the courts reject Mr. Trump’s claims, the chances of Mr. Smith going to trial before the election have diminished.
The Department of Justice is in charge of this holdup. Not only did it delay indicting Trump for two and a half years after he left office (perhaps because of Attorney General Merrick Garland’s ambivalent attitude toward the new legal theory being used), the department finally filed charges on January 6th. When he did so, he chose to indict Trump for his crimes. official act Not as a personal act as a candidate, but as president.
Apparently this was not necessary. In his Supreme Court brief in the case filed on Monday, Smith apparently feared that the Supreme Court could grant the president immunity for official acts, saying that Trump’s “private “The allegations of misconduct are more than sufficient to support an indictment.” oh. So why are we insisting on accusing President Trump of official conduct and inviting a showdown in the Supreme Court over the scope of immunity?
To review: There is no serious argument that a former president could be prosecuted for actions taken in his capacity as a civilian, such as shooting someone on Fifth Avenue. However, the Supreme Court recognizes various forms of immunity for public officials acting in their official capacity. In the 1982 incident Nixon vs. Fitzgerald, the court said the president cannot be sued for acts he commits in his official capacity. President Trump has argued that this principle should also apply to criminal prosecutions. The Supreme Court has never ruled on this issue because no president has ever been criminally prosecuted for an act in official capacity.
President Trump’s efforts to overturn the 2020 presidential election included a mix of private and official actions.. Smith’s Supreme Court brief states that Trump is “alleged to have conspired with four private attorneys and private political consultants in his efforts to overturn the election results as a candidate.” lost. Smith argues persuasively that these and other claims “deviate significantly from the concept of official presidential conduct.”
In other words, if Mr. Smith had wished, he could have filed an election interference lawsuit accusing Mr. Trump only of his actions as a candidate seeking re-election. Trump would have appealed, but the Supreme Court would have been unlikely to intervene. Mr. Smith would have had a better chance of getting the trial and conviction that Mr. Trump desperately needs before Mr. Trump could be re-elected.
Still, Smith insisted on indicting Trump’s official actions and asked the Supreme Court to address the landmark constitutional question. The clearest example of official conduct charged in the indictment is the way President Trump sought to use the Justice Department to investigate voter fraud. Control of each cabinet ministry and agency is the prerogative of the president. President Trump’s pressure on Vice President Mike Pence over the electoral vote count may also fall under this category.
The Jan. 6 indictment, which did not charge Trump with any official act, would have been narrow in scope. The resulting trial would not have been as dramatic as the January 6 committee hearing. And the Biden Justice Department would not have had the satisfaction of punishing President Trump’s abusive behavior. president Power. But it probably would have been processed more quickly through the court system and would have been enough for a conviction, according to Smith.
The Biden administration’s Justice Department instead bet on a flashier but less strategic approach. The resulting delay in appeals was predictable. If President Trump goes into November without being convicted on January 6th, he will have Jack Smith to thank.
