Special counsel Jack Smith’s latest filing in the January 6 case is an extraordinary and convincing argument for the continued criminal prosecution of former President Trump for his attempts to stay in power after losing the 2020 election. But it also makes glaringly obvious the dangers of the Supreme Court’s decision last year, in Trump v. United States, to grant presidents broad immunity from prosecution for “official” acts, even if those acts are patently criminal.
While brilliantly argued, and full of compelling evidence that should result in Trump’s conviction (unless he wins the election, of course), Smith’s brief is at least as notable for what’s missing as what’s included. It contains only the tip of the iceberg of evidence against Trump because of the incredible restrictions the court’s six conservatives imposed on both evidence and prosecutable actions. Many sentences hint at Trump’s broader actions, which involved government officials, but virtually all such evidence is left out because, presumably, Smith concluded these constituted “official” acts.
In this way, the brief is an inadvertent road map for how to lead a legally bulletproof insurrection. All Trump or a similarly minded future president would have to do is to execute his coup via government officials only, and in the guise of supposedly “official” acts—say, via the military—and it could not be prosecuted. As long as he hired his co-conspirators, as official government employees, he would be all set.
Some of the strongest evidence in the brief focuses on the connections between Trump’s efforts to dispute the election, despite the overwhelming evidence that he had lost, and his threats against Mike Pence, as Trump repeatedly tried to force his vice president not to play his official role and in effect block the transition of power to a new president. But Smith is careful in his characterizations, distinguishing between Trump’s role as president and his role as a candidate: The brief argues that none of Trump’s attempts to pressure Pence should be regarded as “official” acts within the role accorded the president in terms of elections; instead, these were Trump’s campaign decisions, as a private citizen.
The most shocking evidence, as many news outlets highlighted on Wednesday, came in the connections between a series of Trump’s tweets, which Smith carefully shows are “private” acts, and Trump’s orchestration of a pressure campaign against Pence to not count the votes. Trump threatened Pence that he would be hated by hundreds of thousands of people, and then issued a tweet calling them to the U.S Capitol to protest. Finally, on January 6, when Pence had not yielded to such pressure, Trump tweeted a message at 2:24 p.m. that essentially sicced the crowd on him—and then, when warned by an aide of the danger Pence was in, responded, “So what?”
Despite the redactions, it is utterly clear that most of the brief’s evidence comes from campaign employees, employees of state governments, and public personalities and public messages. The brief almost completely excludes evidence from Trump’s staff, of which Smith doubtless has a huge amount.
That’s just the beginning of the notable omissions.
What of Trump’s firing, just days after the election, of Defense Secretary Mark Esper, who alleges that Trump had ordered him to deploy 10,000 troops in D.C. amid the George Floyd protests—and then appointing an “acting” secretary of defense, Christopher Miller, who imposed restrictions on the secretary of the Army in deploying the National Guard on January 5–6? What of Trump’s firing of Attorney General Bill Barr in December 2020, after Barr would not do what he requested in terms of claims about voting? What of Trump’s almost immediate attempt to replace Barr’s “acting” replacement, Jeffrey Rosen, with one of the alleged co-conspirators in the plot, who would be more compliant in overturning the result? What of all Trump’s efforts to demand access to voting machines, to seemingly get directly involved in state vote-counting processes, and to order officials to get involved in ways that they were uncomfortable with? What of the evidence of witnesses like Trump staffer Cassidy Hutchinson about his actions on January 6?
Smith and his team left out all of this evidence, and so much more, upon the direction of the Supreme Court.
The court’s opinion in Trump v. U.S., authored by Justice Samuel Alito, stated that any orders that Trump gave to anyone in the Department of Justice were “absolutely immune” from prosecution. It stated that any communication with any employees in any executive branch was “presumptively immune.” It defined “official acts” broadly. It emphasized separation of powers but said not a word about balance of power. It explicitly stated that Trump’s “intent”—which is normally a crucial component in criminal cases—could not be considered when deciding whether an act was “official” or not. Thus it gave dramatic protection for an expansive range of Trump’s actions on the days and weeks leading up to January 6, and to all those who worked for him and performed such actions, even if they were part of this broader plot.
Going forward, this brief reveals the alarming breach that the Supreme Court opened in the entire system of checks and balances. Every time Smith’s brief mentions the distinction between official and unofficial acts, every time it stresses that someone is a “running mate” or “campaign manager” and not the vice president or a staff member, it points to the extremely large gap in accountability created by the Supreme Court. What if Trump had asked his acting attorney general to arrest his political opponents, starting with the candidate who defeated him, Joe Biden? What if he had asked his acting secretary of defense to commit some heinous act, like invading Congress to stop the certification of Biden’s victory—or killing Pence? Those would seem to fall within the range of official acts that the Supreme Court made unprosecutable.
Next time, all a losing president has to do to cling to power is use his appointed officials—even “acting” members of his Cabinet, who do not have to be approved by the Senate, will do. It’s a wide-open field of opportunity. Sure, such a president might then be impeached by the House, but we have seen how nearly impossible it is to win a conviction in the Senate. And the Twenty-Fifth Amendment is almost certainly a pipe dream.
Smith’s brief does push back directly somewhat on many of these holdings, partly because Alito’s opinion is in many ways difficult, vague, and unclear. So despite the fact that Alito provides no provision or discussion of criminal acts that might fall within a president’s official duties, Smith begins to articulate such a category. He can do little more, since he must present his case within the Supreme Court’s ruling. But Smith emphasizes the “take care” clause in the Constitution, which states that the role of the president is to take care that the laws be duly enforced. What if the president uses his official powers, and the officials who serve him, to do something that instead undermines the laws, or is clearly not within the scope of his official duties and has a criminal purpose related to his private desires? Indeed, how can an official act not be criminal if it is the opposite of duly enforcing the laws?
Smith raises these questions, but whether the Supreme Court’s conservatives have any answers is itself an open question. Unless the justices provide clarity, future presidents will doubtless believe that Trump v. U.S. gives them broad license—and if the next president is the namesake of that calamitous ruling, he will doubtless take full advantage.
Already, the chief contender for Trump’s attorney general, if he wins, is threatening ruthless behavior. Mike Davis, who was once a clerk for Justice Neil Gorsuch, describes himself as “Trump’s viceroy,” a word that historically meant an absolutist governor who shares some of the king’s powers: “The viceroy is fucking coming … [Democrats] don’t know what’s coming in January 2025.”
