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But after slicing out the portions on the Justice Department, Smith chose to keep the rest of the indictment largely intact—with some adjustments around the edges. Apart from the Court’s assertion that Trump’s interactions with the Justice Department were absolutely immune, the ruling doesn’t reach firm conclusions on how to understand his immunity for other conduct, instead remanding the matter to the district court. So Smith is here making an argument for a broad range of prosecutable conduct, albeit within the boundaries set around him by the Court. Put in more tactical terms, he is betting that he can persuade Judge Chutkan—and eventually at least two of the justices who signed on to the majority opinion—to let him proceed with the rest of the indictment with modest adjustments to emphasize the nonofficial and public nature of the conduct in question.
Consider, for example, Trump’s efforts to bully state officials into overturning the election—like his famous phone call to Georgia Secretary of State Brad Raffensperger demanding that Raffensperger “find 11,780 votes,” or his berating of Arizona Speaker of the House Rusty Bowers to hold a hearing over false claims of election fraud. During oral argument, Trump’s counsel John Sauer suggested that such conversations constituted official acts for which Trump should be immune. Despite several justices’ skepticism toward Sauer’s expansive position, the majority opinion seems open to this view, suggesting that “the President may speak on and discuss such matters with state officials … to encourage them to act in a manner that promotes the President’s view of the public good.” But the Court ultimately doesn’t resolve the question of whether this is immune official conduct one way or another.
Smith could have backed down and edited this material out of the indictment as well, but he chose not to. By leaving it in, largely unchanged, he’s asserting that such actions are unofficial and therefore open to prosecution. It is possible that Smith is planning to make a different argument here that the Supreme Court decision would also invite—that these acts are only presumptively immune and that he can rebut that presumption—but the specific tweaks to the allegation suggest he is planning the former approach.
The Superseding Trump Indictment Charts Jack Smith’s Path Forward
Smith has reworked the Jan. 6 case against Trump in light of the Supreme Court’s decision on presidential immunity.
Basically, the Court left enough ambiguity in its ruling to allow Chutkin to make some determinations on her own. Which leaves an opening for trump to appeal a guilty verdict based on faith his Court will once again come to his aid by ruling whatever determinations she makes as to immunity were not broad enough.
