Comment: New Jan. 6 brief against Trump still faces challenge

By Stephen L. Carter / Bloomberg Opinion

Having worked my way through special counsel Jack Smith’s 165-page brief asking the trial court to reject former president Donald Trump’s plea of immunity, I’m not sure Smith has found a way around the Supreme Court’s decision earlier this year in United States v. Trump. That matters, because long before there’s a trial, the justices will surely be taking another look.

In August, a new grand jury handed up a new indictment of the former president for his efforts, while in office, to undo his 2020 election defeat. This week, the trial judge unsealed Smith’s brief arguing that the crimes with which Trump is charged fall outside the scope of presidential immunity.

A quick refresher on what Chief Justice John Roberts wrote for the majority the first time around:

First, the president cannot be punished criminally for “conduct within his exclusive sphere of constitutional authority.” Second, for “acts within the outer perimeter of his official responsibility” the president’s presumptive immunity can be overcome only if the prosecutor shows that indictment and trial pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Third, when the president acts unofficially, there is no immunity.

Before turning to how Smith seeks to get around all this, let me interpose a word of caution. Contrary to the way the motion has been described in news reports, it doesn’t lay out “evidence”; it consists, rather, of a series of allegations that the prosecutor believes he can prove in court. But it’s not evidence until it’s admitted at trial.

Now, as to Smith’s brief. I wrote in July, and I still believe, that Roberts’ majority opinion in United States v. Trump, although widely condemned as going too far, includes a key sentence helpful to the prosecution: “There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity; perhaps as a candidate for office or party leader.”

Unsurprisingly, the special counsel’s revised brief is principally an effort to distinguish President Trump from candidate Trump. It’s true, for example, that presidents must speak to vice presidents regularly; but according to Smith, future presidents will not be chilled or deterred in their crucial work if Trump is punished for his fruitless effort to persuade Pence to block the count of the electoral votes. Similarly, says the prosecutor, although the president may often speak to state officials, his exhortations to Georgia Secretary of State Brad Raffensperger to find 11,780 more Trump votes isn’t the nation’s business. On this theory, as long as future occupants of the Oval Office stick to the nation’s business, they have nothing to worry about.

The legal scholar in me worries that such efforts as these cut a bit too finely. The prosecutor scores some good points, but the heart of the brief — Trump’s efforts to pressure Pence to refuse to certify the electoral votes — might not pass the Supreme Court’s review.

Smith argues that finding a crime in the president’s effort to influence the vice president in his “legislative” duties wouldn’t chill relationships between future holders of the offices, because future presidents can still “direct the Vice President in the discharge of his Executive Branch functions” and “advise” him in his legislative functions; among them “casting tiebreaking votes on legislation.”

But is this so? Suppose President Kamala Harris says to Vice President Tim Walz, “We need you to break the Senate tie on that tax bill.” That’s an effort to “direct” the vice president’s legislative duties according to presidential priorities. And if that tax bill is crucial to Harris’ reelection, then down the rabbit hole we go.

I’m not suggesting that passing a bill is anything like refusing to count electoral votes. My point, rather, is that the Supreme Court is likely to respond that the president’s official duties do include interacting with the vice president on legislative as well as executive actions, and so might be chilled. And I’m not sure the justices’ concerns will be met because Trump, as Smith notes, spoke to Pence “as a running mate.” That’s why I wouldn’t be entirely surprised were the Supreme Court, when it reviews the case again, to toss the parts of the indictment that involve Pence.

And that’s one of the stronger parts of the brief. Another is the Georgia phone call, although Trump says he was just carrying out his official duty to ensure the reliability of elections. (Giggle test failed.)

Smith’s brief has other weaknesses. For example, Professor Lawrence Lessig of Harvard Law School has presented a strong case against prosecuting so-called “fake electors”; if he’s right, then it shouldn’t be a crime to try to organize them, as the brief claims Trump did. As to the claim Trump defrauded the public, losing candidates have been crying fraud at the polls ever since we’ve had journalists to report the claim. (Hasn’t anybody seen Citizen Kane?) And so on.

Instead of this mishmash, I’d rather have seen Trump indicted, if there’s a provable case, for inciting a riot on Jan. 6. Smith tells us in his brief that the former president “galvanized” the crowd that day, and that he was indifferent when informed that a riot had broken out at the Capitol, but the indictment nowhere charges incitement.

Don’t get me wrong. Overall, Smith has done an admirable job. I’m just not sure the brief has enough juice to get past a skeptical Supreme Court.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”