Here’s what could get tossed from Trump indictment after Supreme Court ruling

Special counsel Jack Smith accused former President Donald Trump of pressuring his vice president to derail the election certification in January 2021.

Trump’s interactions with Mike Pence were among several key acts Smith used to bring his election interference indictment against Trump, but the special counsel may now have to scrap these acts because of the Supreme Court’s decision on Monday.

The high court ruled 6-3 along ideological lines that certain official acts by presidents are not prosecutable at all, while other official acts require the government to meet a high criteria before it can criminally charge a president for them.

The ruling was a massive blow to Smith’s case, which could look like a shell of its former self once the lower courts have sifted through it to align it with the Supreme Court’s guidance.

The decision came after Trump argued all four of his charges should be dropped because he had absolute immunity as president, which, he said, protected him from prosecution. The district court and appellate court in Washington, D.C., rejected Trump’s claims, but the Supreme Court partly agreed with Trump.

The high court’s majority divided presidential acts into three categories: official acts that are absolutely immune from prosecution, official acts that are presumptively immune from prosecution until the government can prove the prosecution would not threaten the authority of the executive branch, and unofficial acts, which can always be prosecuted.

Judge Tanya Chutkan, who is presiding over Trump’s case at the lower court level, must now hear arguments from parties about which specific acts are which and make excisions in Trump’s indictment where appropriate.

Chief Justice John Roberts offered a roadmap for Chutkan, saying Trump’s communication with his Department of Justice officials when he was in office were core functions of Trump’s job, for which he can absolutely not be prosecuted. Trump’s communication with his vice president or state officials was less clear cut, Roberts wrote, noting the lower courts would have to sort that out.

Complicating matters, Roberts wrote that prosecutors are not to raise questions about the motives behind a president’s actions or use immunized official acts as evidence. These activities would serve to “distort Presidential decisionmaking,” Roberts said.

The question of how the Supreme Court’s decision will look in practice is not fully clear at this stage, but below are examples of alleged acts in Smith’s indictment that are now in jeopardy.

Trump’s exchanges with Department of Justice officials

Smith repeatedly cited conversations Trump had with acting Attorney General Jeffrey Rosen and other DOJ officials in his indictment. To support the allegation that Trump knowingly defrauded the United States and deceived voters, Smith alleged the DOJ officials told Trump his claims about widespread voter fraud were unfounded.

“On December 31 and January 3, the Defendant repeatedly raised with the Acting Attorney General and Acting Deputy Attorney General the allegation that in Pennsylvania, there had been 205,000 more votes than voters,” Smith wrote. “Each time, the Justice Department officials informed the Defendant that his claim was false.”

Because the Supreme Court said DOJ communication is off limits from prosecution, Smith will likely no longer be able to rely on these details to support his charges.

Trump’s exchanges with Jeffrey Clark

Clark appears as an unnamed co-conspirator in Trump’s indictment. He served as acting head of the DOJ’s Civil Division in 2020, and Smith alleged that Trump conspired with Clark on phone calls to circumvent his superiors at the DOJ in an effort to help Trump pressure state officials to overturn the election.

As a DOJ official, Clark’s communication with Trump may now be stripped from the case.

Moreover, Clark has reason to celebrate the Supreme Court’s decision for his own purposes.

Clark was indicted along with Trump and others in a separate election interference case in Georgia, and the judge there may need to take his cues from the high court and reevaluate some of the charges. Clark was also at risk of losing his bar license because of the election cases, but he may avoid disbarment now.

Trump’s alleged pressure on Pence

While the Supreme Court did not delve into Trump’s indictment to separate all acts into the three categories it laid out, it did explicitly highlight Trump’s interactions with his vice president as an example of what will become a “difficult question” for Chutkan.

“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” Roberts wrote. “The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity.”

Smith alleged Trump conspired with others to attempt to “enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.”

According to the Supreme Court, Smith will have to prove to Chutkan in the coming months that accusing Trump of such a pressure campaign does not threaten the authority of the executive branch.

Trump’s comments to the public

The Supreme Court said that like communication with Pence, Trump’s “comments to the general public” could also be stripped from Smith’s prosecution now.

Trump was a frequent social media user in 2020 and 2021, and Smith seized on some of these posts to support his charges that Trump conspired to violate the rights of voters.

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“On December 3, the Defendant issued a Tweet amplifying the knowingly false claims made in Co Conspirator 1’s [Rudy Giuliani’s] presentation in Georgia,” Smith wrote, adding that Trump posted that Democrats were “ballot stuffing” and that Rudy Giuliani’s presentation meant an “easy win” for Trump in the battleground state.

Smith will now have to justify to Chutkan that these posts were unofficial acts or official acts that are not immune from prosecution if he would like to use them against Trump.

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• Donald Trump
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