Special counsel Jack Smith defiantly re-injected the question of Donald Trump’s bid to steal the 2020 election into the intensifying end game of this year’s White House race.
By trying to rescue his case after his initial indictment was gutted by the Supreme Court’s immunity ruling, Smith signaled that he is determined to bring the former president to justice — even though there will be no trial before Election Day.
“I think this is basically Jack Smith saying, ‘I still got this’” former FBI Deputy Director Andrew McCabe, a CNN legal and national security commentator, said after the special counsel on Tuesday filed a modified indictment endorsed by a new grand jury.
His move underscored the huge personal investment Trump has in winning the presidency in November: He not only would return to the nation’s top office, but would also gain the authority to halt this and another federal case against him and head off any sentences that could include jail time if he is convicted.
“This is a very big year, it is a very important election,” former federal prosecutor Ankush Khardori told CNN’s Alex Marquardt on Tuesday. “This case is at stake in the election, because if Trump wins, it is going away. If Trump loses to Harris, this case is going to proceed to some sort of conclusion.”
The conservative majority’s ruling earlier this summer that Trump could be covered by immunity from criminal prosecution for some of his actions as president represented one of the most consequential moments in Supreme Court history and has massive implications for the US system of government. Many mainstream scholars blasted the decision as contrary to the spirit of the country’s founders in that it appeared to hand significant unchecked powers to the presidency.
The decision also sent shockwaves through an already tumultuous presidential race, since it appeared to offer an ex-president who already believed he was all powerful the chance to pursue strongman rule if he wins November’s election. Democratic nominee Kamala Harris criticized the decision in her convention speech last week: “Consider, the power he will have … Just imagine Donald Trump with no guardrails, and how he would use the immense powers of the presidency of the United States.”
Smith’s move also creates other profound political, legal, and constitutional overtones at a critical national moment, 10 weeks from an election that could profoundly reshape the country and that may again test its institutions to the limit.
What’s in the new indictment
The facts and the evidence of Smith’s case haven’t changed. The indictment still charges Trump with conspiracies to defraud the government system that counts election votes and to corrupt and obstruct the process of certifying Joe Biden’s victory. It also accuses him of hatching a conspiracy against the bedrock right of citizens to cast a vote and have it counted.
But in deference to the Supreme Court ruling, Smith removed language that alleges that Trump used the Justice Department to promote his claims of electoral fraud. And he attempted to style much of the remaining alleged conduct as that of a “candidate” rather than a president acting in his official capacity, to get around the issue at the center of the court’s ruling.
But his case still faces huge obstacles. Presiding District Court Judge Tanya Chutkan must now interpret the high court’s ruling to decide which evidence remains admissible. And the ex-president’s legal team will fight Smith at every turn and use every appellate option available. The Trump legal and campaign team may accuse him of infringing Justice Department custom to avoid proceedings against key political figures so close to an election. Of course, the reason the original version of the case did not go to trial long before the election was partly because of the successful delaying tactics of Trump’s legal team.
“If Donald Trump doesn’t like how late this is happening, he should not have been delaying and postponing for many, many months,” Maryland Rep. Jamie Raskin, a Democrat who sat on the House committee that investigated the January 6, 2021, attack on the US Capitol, said on CNN’s “The Situation Room.” “Jack Smith is playing the cards he’s been dealt by Donald Trump and by Trump’s supporters on the Roberts Court who have made this go as slow as possible. And I think there’s something quietly heroic about Jack Smith insisting on going forward to make sure that this plot comes to light.”
For all its success in delaying the initial January 6 federal case, the ex-president’s camp was unable to prevent Trump’s conviction in a hush money case related to the 2016 election and a massive fraud judgement against him, his firm and his adult sons in New York. Trump was also found liable for defamation in another case over sexual assault allegations by writer E. Jean Carroll. But a Trump-appointed judge in Florida recently dismissed Smith’s classified documents case against Trump (the special counsel is appealing). And another election meddling case, in Georgia, has been beset by multiple delays. The former president has pleaded not guilty to all charges in all cases.
Immediate political reverberations
The political significance of Smith’s fresh attempt to force Trump to face unaccustomed accountability for his actions adds another dimension to the ex-president’s new face-off with the replacement Democratic nominee, Harris.
The revised indictment will freshen the issue of Trump’s alleged criminality and autocratic ambitions in the minds of voters, after his mountain of legal woes faded as a driving force in the campaign in the furor over Biden’s disastrous debate performance, his subsequent withdrawal from the race and Harris’ storming start to her own campaign. Although there’s no chance the case could come to trial before the election, any attempt by Smith to hold evidentiary hearings in the coming weeks could create a new wave of news coverage about Trump’s alleged criminality as early in-person and absentee voting begins.
Being indicted, yet again, in the middle of a presidential campaign would be a disqualifying badge of shame for most candidates. Yet Trump has used his criminal problems to revive his campaign before – especially during the Republican primary contest. His new indictment came almost exactly a year after he showed up to be booked in an Atlanta jail and submitted to a mug shot that his campaign turned into a defiant emblem.
Trump has struggled in recent weeks to find traction for his campaign against a new Democratic nominee. And the issue of the ex-president’s legal woes had not been a central focus of the election race in recent months. But no sooner had the new Smith charges been filed, the muscle memory of his team returned, as he revived the core narrative of his bid for a second term — a false claim that he’s a victim of election interference by a weaponized Biden Justice Department. The ex-president accused Smith of trying to “resurrect a ‘dead’ Witch Hunt in Washington, D.C., in an act of desperation.” He also claimed the new indictment was a new attempt at election interference to distract from the “catastrophes Kamala Harris has inflicted on our Nation.”
It also did not take long for a new fundraising appeal based on the case to hit email inboxes.
A new challenge for Harris
The return of Trump’s legal quagmire to center stage presents new challenges for Harris. She has focused the early weeks of her White House bid on the pain Americans have faced from high grocery prices to mitigate one political weakness and is seeking to portray herself as a candidate of generational change as compared to Trump.
The vice president hasn’t been quite so overt as Biden in rooting her campaign in a battle for the nation’s soul. But she last week cited Trump’s legal nightmares to portray him as an “unserious man” who would trigger “extremely serious” consequences if he returned to the Oval Office.
Many Harris supporters like the contrast of the vice president, a former prosecutor, and Trump, a convicted felon and indicted suspect — a dynamic certain to play out on the debate stage on September 10.
The latest Trump indictment also bolsters the Harris theme that Americans have a “precious, fleeting opportunity” to move past the bitterness, cynicism and chaos of the Trump years and into a more optimistic future. Still, her campaign must have some concerns that some moderate, swing voters might view yet another indictment of the former president as overkill.
Aside from the immediate political and electoral implications of the new indictment, Smith’s latest filing was a reminder of the surreal reality that a once-and-possibly-future president is being prosecuted for an attempt to ignore the will of voters and stay in power after losing an election.
Biden’s departure from the campaign and the pomp of the conventions have made Trump’s threat to democracy somewhat of an afterthought in recent weeks but the question of how a president who tried to overthrow American democracy avoided accountability and was able to run again for the White House — and potentially win it — is certain to preoccupy future historians.
