Trump’s revised indictment

MYRNA BROWN, HOST: It’s Thursday the 29th of August.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

PAUL BUTLER, HOST: And I’m Paul Butler.

Well as you may have heard on Tuesday, our colleague Mary Reichard is slowly making her way back to the program following her heart procedure earlier this month.

Lord willing, she’ll return as co-host in the weeks ahead. But today, she has a conversation with a legal expert about developments in one of the cases against former President Donald Trump.

BROWN: On Tuesday, special counsel Jack Smith filed a revised version of an indictment charging former President Donald Trump with obstruction and conspiracy during the events of January 6, 2021.

This comes after the Supreme Court ruled last month that presidents have broad immunity for official acts.

BUTLER: Here now to talk about it with Mary Reichard is constitutional scholar and Manhattan Institute Senior Fellow, Ilya Shapiro

MARY REICHARD: Ilya, good morning.

ILYA SHAPIRO: Good to be back with you, Mary.

REICHARD: So Ilya, does the new indictment clear the Supreme Court’s legal hurdles?

SHAPIRO: Ultimately, it'll be up to a jury, I suppose, or to courts evaluating what's being the charges as alleged. What's different here isn't the charges themselves. There's some speculation that maybe two of the four would be dropped. They weren't, but the factual predicates, that is, the allegations of what Trump did that constituted a violation of those federal laws that constituted federal crimes, those changed. So any reference to the President talking to Justice Department officials or anyone else in the executive branch was removed because that is the core of what the Supreme Court said was absolutely immune with respect to presidential actions.

REICHARD: Ok, and just to clarify, some lay people may be confused by this. Double jeopardy does not apply here, because a trial jury was not yet impaneled. Correct?

SHAPIRO: That's correct. This is all pre-jury, pretrial skirmishes over what are the correct charges? What does the President have immunity for? And other issues like, for example, whether Jack Smith, the special prosecutor, was even properly appointed in the first place. The judge in the Florida case, Aileen Cannon, ruled in a 90 page opinion that he was not. So that's up on appeal and continues to be a separate issue in this DC prosecution.

REICHARD: You know, I want to go back to that Supreme Court decision last month on presidential immunity. How did that affect the January 6 case? I know we talked about official versus unofficial acts. How is it that Jack Smith files this new indictment and he gets to decide what's an official versus an unofficial act?

SHAPIRO: Well, he's reading the case, and he's responding to it, and he, as a prosecutor, is using what is supposed to be his good faith effort to remove anything that the Supreme Court said was absolutely immune, while maintaining things that over which there will be legal skirmishes. And lower courts are to determine, the Supreme Court said, whether certain kinds of actions or communications are indeed official acts, or whether the prosecutor rebut the presumption, as the Supreme Court put it, that they are immune.

REICHARD: So this requires trial and time, right? So how is it that Jack Smith can take out some and leave the rest? For example, I'm thinking of Trump's communications with his then Vice President, Mike Pence. All of that stuff's still in there.

SHAPIRO: Right. Well, there's an open question there. If Pence was acting as part of the legislative branch, as the President of the Senate in that context, rather than as vice president, then that's interbranch communications, which might not be immune. The Supreme Court speculated without deciding ultimately. So you know, a lot of Trump supporters hailed the Supreme Court opinion as essentially letting Trump off scott free or vindicating him. A lot of Trump's opponents wailed that it was putting somebody above the law. Neither is the case. It was a fairly narrow and vague or ambiguous opinion that left a lot for lower courts to determine, whether with respect to Trump in the January 6 case, or in future with other types of presidential actions.

REICHARD: Okay, let's talk about it. It was in late June that the Supreme Court handed down its decision in Fisher versus United States, and that said the obstruction statute is not at issue as applied to the Capitol rioters. That is also still in this new indictment from Jack Smith. How can that still be in there as to Trump?

SHAPIRO: Well, what the rioters were doing, or the the alleged, you know, the people who were charged with trespassing and breaking various regulations with respect to the Capitol, the court found that the financial regulations there were improperly applied, as opposed to them. Jack Smith presumably has a theory of how what the people at the Capitol were doing were engaged in different types of criminal activity than what Donald Trump was doing in directing them, or otherwise, whatever his theory of the case is. So, certainly Fisher also harmed the prosecutor's case. But again, that's yet another thing for a court to decide in the future.

REICHARD: We are a little bit over 60 days out now from the presidential election. Ilya, do you think it mattered to Smith and his decision to bring this new indictment now?

SHAPIRO: Well, I'm sure he wanted to do it as soon as he could. It took a little while. The immunity decision came down July 1, so it took him almost two months to come up with with it. You know, the timing is what the timing is. Once the decision by the Justice Department was made and by Smith was made to pursue this and to indict and to take the case to trial, he had to continue with it. It was very highly unlikely in any scenario that after the Supreme Court opinion that Smith, at that point, would say, "Oh, well, now we're too close to the election, we're just going to abandon this altogether."

REICHARD: I do understand, though, that the DOJ has some kind of an unwritten rule to avoid election interference within two months of an election. So, here we are a little over 60 days, two months before the election. Do you think that figured in?

SHAPIRO: Again, this isn't a brand new indictment. If they were considering a brand new one on based on different activities, different different criminal laws, that would have been a greater consideration. But here he's responding to a Supreme Court opinion. You know, the delay was not through any fault of his, and it just, it just is what it is. So, I don't think in this case, that was that played a role, or that we should, you know, criticize or laud his, his handling of that, that internal policy.

REICHARD: One last question here. A lingering matter, I think in many people's minds, is that what some people call Trump's election interference with regard to January 6, other people call it rooting out election fraud, and they see what Jack Smith is doing as election interference. What say you?

SHAPIRO: Yeah, where you stand can be often be where you sit. And certainly the allegations relating to January 6 are different than the allegations of interference in Georgia, for example, in that state case regarding allegedly improperly pressuring state officials or doing other things in violation of Georgia election law. So, it's unfortunate that all of these prosecutions have been tainted by Alvin Bragg's prosecution in New York. Remember the long ago payoff of the porn star of supposedly violating campaign finance rules while also violating business records rules by using the go between Michael Cohen---all this convoluted story for which, nevertheless, there was a conviction, but plainly political and kind of tainted everything else that's been going the lawfare, so to speak, that's been filed against the former president.

REICHARD: Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Ilya, thanks so much.

SHAPIRO: My pleasure. Take care.

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