Donald Trump on trial in New York: NAJ screen shot

Analysis –
By Glynn Wilson –

WASHINGTON, D.C. – In one more effort to save American democracy from Donald Trump and his conservative Supreme Court, special prosecutor Jack Smith filed another indictment against the former president in federal court on Tuesday, once again accused him of plotting to overturn the results of the 2020 election.

In a legal maneuver that may be too little too late on the part of the Department of Justice under the leadership of Attorney General Merrick Garland in the administration of President Joe Biden, the superseding indictment is designed to sidestep criticism from this Supreme Court that granted that president immunity from prosecution for official acts.

New Indictment

The revised indictment, issued in Federal District Court in Washington, represents an attempt by prosecutors in the office of the special counsel to preserve the bulk of their case against the former president, while bringing the allegations into line with the Supreme Court’s ruling that former presidents are immune from criminal prosecution for many official acts taken while in office, according to New York Times coverage of the case.

The basic structure of the original indictment, issued a year ago in August, is still there, accusing Trump of plotting to overturn the results of the 2020 election. But it still does not go far enough. It does not explicitly charge Trump with engaging in a seditious conspiracy to take over the government before the newly elected president could be sworn in, or for inciting a violent insurrection to delay and stop the peaceful transfer of power. The attack on the Capitol on Jan. 6, 2021, was clearly the result of a seditious conspiracy, an insurrection that was clearly incited by the sitting president to attempt to remain in power, and an attempted coup, as even members of Congress who investigated the case in the House charged in their investigation.

See recommended charge IV. “Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383):

House Select Committee Unanimously Recommends Criminal Charges Against Donald Trump

The American people have been let down by this administration and this Justice Department while being treated as heroes by some Democrats on social media for months. Jack Smith is no hero. The political cowardice displayed in this case may be borne out of a fear of launching another civil war.

But there would be no war or no existential threat to democracy if Trump had been convicted by a jury of his peers and was rotting right now in federal prison, rather than still running for president as the rogue con artist he clearly is who somehow still manages to have a strangle hold on this Republican Party. The pro-wrestling analogy is right on target.

How Wrestle­ Mania Trumped Intelligence in U.S. Politics

The Department of Justice charged the leaders of the Proud Boys and the Oath Keepers with engaging in a “seditious conspiracy.” Why would the leader of the attempted coup who incited the insurrection not also be charged for that?

Proud Boys Leader Enrique Tarrio Sentenced to 22 Years in Prison for Seditious Conspiracy

Oath Keepers Leader Stewart Rhodes Sentenced to 18 Years for Seditious Conspiracy

The tone of the new charges describes Trump as “a candidate for president of the United States in 2020,” an edit from the original: “the 45th President of the United States and a candidate for re-election in 2020.”

The new indictment came just days before Trump’s lawyers and Smith’s deputies were scheduled to provide the federa judge overseeing the case, Tanya S. Chutkan, with their proposals for how to assess the impact of Supreme Court’s immunity decision on the case. The two sides are still expected to file papers with Judge Chutkan on Friday, suggesting how they would like to move forward.

The indictment was also filed in advance of the onset of the so-called 60-day rule, an unwritten internal Justice Department practice that calls for avoiding taking overt prosecutorial steps that could influence how people vote within two months of an election.

Of course Trump cast aspersions on Smith and the new indictment on social media. So what?

Perhaps the most significant change between the 36-page superseding indictment and the original 45-page indictment, according to the Times, was that Smith’s team removed all allegations concerning Trump’s attempts to strong-arm the Justice Department into supporting his false claims that the election had been rigged against him. The initial charging document accused Trump of conspiring with Jeffrey Clark, a loyalist within the Justice Department who had promised to launch “sham election crime investigations” and to “influence state legislatures” to back Trump’s false claims of election fraud.

In its crazy ruling on immunity, the Supreme Court effectively struck those accusations from the case, finding that Trump could not face criminal charges related to his interactions with Justice Department officials. The court claimed that a president’s dealings with the department were part of the core official duties of his office, even if they were clearly corrupt, and so they ruled that Trump was immune from federal prosecution. The revised indictment also removed references to Trump’s conversations with his White House aides and lawyer, even if those actions were also clearly corrupt and illegal.

The superseding indictment retains extensive accounts of Trump’s interactions with Vice President Mike Pence and his staff, emphasizing that Pence was also Trump’s running mate, not just the sitting Vice President, and that Trump demanded that Pence use his ceremonial capacity as president of the Senate to halt the official certification of the election and send it back to the states so a fake set of Electoral College electors could change the vote. That role placed him beyond the reach of core executive branch powers and responsibilities, according to the indictment.

Trump still faces the same four charges that he confronted in the original indictment and remains accused of overlapping conspiracies to defraud the United States, to obstruct the certification of the election at the Capitol on Jan. 6, 2021, and to deprive millions of Americans of their rights to have their votes counted. The revised indictment also retains several of the alleged plots that appeared in the initial charging document.

Trump remains accused of working with his subordinates to create fake slates of electors claiming that he won the election in several key swing states that were actually won by President Biden. He is also still facing charges related to his efforts to pressure Pence into throwing the election his way at the Jan. 6 certification proceeding at the Capitol. And he remains charged with exploiting the chaos and violence that erupted at the building that day in order to pursue his goal of clinging to power.

Smith’s team reframed many of their accusations to comport with the Supreme Court’s dubious finding that Trump — as well as other future former presidents potentially — enjoy the presumption of immunity for many acts undertaken in their official role as commander-in-chief.

Prosecutors cut some allegations based on statements that Trump made at official presidential events and conversations that he had with his formal White House advisers. They also altered the descriptions of the six people accused of being co-conspirators, making sure to depict some of them as “private attorneys” to drive home the point that he was acting in his unofficial role as a candidate, not in his official capacity as president.

The revised indictment also retains many of Trump’s public statements on his social media account about the election, while explicitly arguing that those communications to the public should not be understood as official conduct.

“Throughout the conspiracies, although the defendant sometimes used his Twitter account to communicate with the public, as president, about official actions and policies, he also regularly used it for personal purposes,” the new indictment charges, saying Trump used social media “to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C., on Jan. 6, pressure the vice president to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on Jan. 6 to unlawfully retain power.”

The decision by Smith and his team to try to keep evidence in the case about Trump’s attempt to pressure Pence into disrupting the counting of Biden’s Electoral College victory could become a major focus of the coming court battle before Judge Chutkan and in any further round of appeals, the Times says.

In the Supreme Court’s immunity decision, Chief Justice John Roberts said that a president is “at least presumptively immune from prosecution” for his interactions with his vice president about constitutional duties, including the vice president’s conduct in overseeing the Senate. Roberts wrote that it would be unconstitutional to prosecute a president for such interactions under certain circumstances, like discussions about casting a tie-breaking vote on legislation of importance to the administration. But he noted that a president plays no role in the counting of Electoral College votes, and left open the possibility that Trump’s pressuring of Pence in that context might be permitted in a criminal trial.

“It is ultimately the government’s burden to rebut the presumption of immunity,” Chief Justice Roberts wrote. He added that Judge Chutkan should take the first crack at assessing “whether a prosecution involving Trump’s alleged attempts to influence the vice president’s oversight of the certification proceeding in his capacity as president of the Senate would pose any dangers of intrusion on the authority and functions of the executive branch.”

Conservative Supreme Court Rules Trump Has Some Immunity from Prosecution for Jan. 6

In a brief filing that accompanied the new indictment, prosecutors noted that the revised charges had been “presented to a new grand jury that had not previously heard evidence in this case.”

That move was an effort to keep Trump’s lawyers from claiming that the grand jury had been tainted by hearing testimony barred by the Supreme Court’s immunity decision. In their decision, the justices ruled that prosecutors were not permitted to introduce evidence stemming from a former president’s official acts even to help prove allegations related to unofficial acts.

It all may be too little, too late now anyway. Many Republican voters don’t seem concerned that they are voting for a criminal candidate, one who has already been convicted on 34 counts of fraud, and found guilty of rape in a civil trial.

It is too late now for a criminal trial of this size and scope to take place before the election on Nov. 5.

If Trump is reelected in November, and survives to be sworn in come January 2025, he will no doubt have all federal cases against him dropped when he becomes in charge of the executive branch of government, which includes the Department of Justice. He has said publicly that’s what he would do. He has said publicly that he does not “believe” in an independent judiciary.

___
If you support truth in reporting with no paywall, and fearless writing with no popup ads or sponsored content, consider making a contribution today with GoFundMe or Patreon or PayPal.