This week special counsel Jack Smith took a new step in two federal criminal cases in which Donald Trump is a defendant. Contrary to Trump’s claim that Smith was “crazy” and trying to interfere in the election, the special counsel acted responsibly to ensure that, like other criminal defendants, Trump would face a jury on felony charges.
On Monday Smith filed an appeal with the 11th US Circuit Court of Appeals over a wrongful decision by US District Judge Aileen Cannon. He denied allegations related to Trump’s alleged unauthorized storage of sensitive national defense documents after he left office, arguing that Congress did not authorize Smith’s appointment.
On Tuesday, Smith’s office announced that a grand jury had approved an indictment related to Trump’s efforts to overturn the election he lost. The new indictment omits references to actions that the Supreme Court said were “official acts” from which Trump enjoys immunity.
The former president remains indicted at four offenses were described in the original indictment: conspiracy to defraud the United States; conspiracy to obstruct official proceedings; obstacles and attempts to obstruct the official process; and conspiracy against rights.
Unless one believes that running for president confers immunity from prosecution—a ridiculous idea that would turn every presidential candidacy declaration into a “Get Out of Jail Free” card—Smith must continue to convict him of his time. It’s not the special counsel’s fault that this is so close to the presidential election. Trump’s lawyers have prolonged the process with legal objections.
The Supreme Court also participated in the delay, slowly working through immunity cases before issuing a complex and uncertain decision in July that said former presidents have absolute or presumptive immunity for “official acts.”
It is largely left to the lower courts to assign such actions to the “official” category. But Chief Justice John G. Roberts Jr. wrote that Trump is immune from prosecution for his alleged actions involving discussions with Justice Department officials.
The new indictment drops allegations related to Trump’s interactions with Justice Department officials. But it remains a reference to other actions by Trump, including the conversation with the secretary of state of Georgia when he said, “I just want to find 11,780 votes” to cancel the victory of Joe Biden in the state and the conversation when he pressured Vice President Mike. Pence declined to legally vote for Biden.
The amended indictment also retained allegations that Trump violated a law against “obstructing official proceedings,” although a Supreme Court ruling in June narrowed those violations to situations involving tampering or destroying documents. The indictment suggests that Trump could not benefit from the ruling as it relates to the creation of false voter certificates.
The superseding indictment provides a powerful, detailed and damning case against Trump. It deserves the jury’s attention. Unfortunately, it is almost certain that the November 5 election will take place before Trump is acquitted or convicted of election-related charges or (if revived by an appeals court) of document retention-related charges.
That won’t change the fact that he was unfit for office before Smith’s recent actions, and before a jury convicted him of falsifying business records in May. Whether he is found criminally liable or not, Trump’s unmistakable efforts to overturn the 2020 election and attach power will undo him for another presidency.
But the delay in the case is tied to the election in one way: If Trump wins, he could drop the prosecution or even try to pardon himself. It is another reason among many others for voters to reject him.
