Why Jack Smith has a Tougher Task than Greek Hero Hercules

Special Counsel Jack Smith’s superseding indictment of former President Donald Trump in the Jan. 6 election interference case makes me wonder if Smith and his team feel like they are fighting the legendary multi-headed Hydra from Greek mythology.

Most prosecutors need only contend with the defendant and defense counsel but Smith’s team also seems to be up against judges and justices. In the Mar-a-Lago mishandling of documents case, they are appealing Judge Aileen Cannon’s dismissal of the charges against Trump on her novel–and baseless–theory that for some 150 years the attorney general has been unconstitutionally appointing special counsel.

In the same spirit, the United States Supreme Court came up with a heretofore-never-discovered doctrine of presidential immunity to shield defendant Trump from substantial parts of Smith’s original indictment.

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There had been much speculation about whether the Supreme Court’s decision would cause Smith to seek a kind of “mini-trial” to sort out what evidence would be admissible and what acts would be immunized under the high court’s ruling. Because the ruling drew hard lines of protection around “official” conduct, a hearing might be one way for trial court Judge Tanya Chutkan to determine which parts of the indictment in the Jan. 6 case would survive. But Smith reportedly will not ask Chutkan for such a hearing, although the issue may still arise at a status hearing convened by Chutkan about how to proceed in the case after the presidential immunity ruling.

But Smith has revealed that part of his strategy is to slim down his case by using what’s known as a “superseding indictment,” which is an indictment that replaces the previous one. An examination of the new indictment reveals that the core charges against Trump survive (Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding, Obstruction and Attempt to Obstruct an Official Proceeding, and Conspiracy Against Rights); however the underpinnings of the legal charges have been cut back to avoid any whiff of “official duties.”

For example, the Supreme Court was quite explicit about the idea that any communications Trump had with the Justice Department—however allegedly ill-intentioned—would be fully immunized. Accordingly, while the original indictment mentioned DOJ over 30 times, the new one makes no mention of DOJ at all. Similarly, communications Trump may have had with White House counsel and staff are now trimmed, leaving only the non-federal government actors in play.

Similarly, the original indictment referenced multiple communications with federal officials like then-Vice-President Mike Pence, DOJ, the Director of National Intelligence and White House attorneys in which Trump was told his claims of the election being stolen were untrue. The new indictment removes all of those and simply asserts that Trump was “on notice that his claims were untrue.”

The new indictment also takes pains to assert that Trump “had no official responsibilities related to state certification of election results” and also distinguishes between when Trump was acting allegedly “not as President but in his capacity as a candidate for office.”

If all this strikes you as being like a version of Wordle, where the prosecutors are not allowed to use certain words like “DOJ” or “president,” you wouldn’t be alone. Smith’s re-tooling of his indictment really points up the absurdity of a SCOTUS opinion which teaches presidents to make sure they tell the DOJ about their intentions to commit crimes–or even enlist DOJ’s aide–so that their actions will be immunized from any prosecution.

Nor does the mere changing of the indictment’s factual narrative and characterizations solve the special counsel’s problems.

Evidentiary issues will abound even with the pared down indictment and look for Trump’s defense team to argue–and appeal–that even Trump’s communications with non-federal government identities still amounted to “official acts.” The distinctions between when Trump is acting as a candidate versus president are already blurry, particularly with the Trump administration’s blatant disregard for the Hatch Act’s prohibition against using official office for politicking.

But an even bigger potential problem for the prosecution awaits with the question of what aspects of the factual narrative will be kept from the jury. Withholding from the jury conversations with White House counsel and DOJ leaves a narrative hole that may lead to inevitable common sense speculation by a jury as to how the hell did all this go on without anyone at DOJ or White House lawyers knowing about it

The Greek Hydra of legend had nine heads and its destruction was one of Hercules’ 12 Labors. The Supreme Court—with its nine members—had imposed a Herculean task upon Smith in the Jan. 6 election interference case. It remains to be seen if he—or any prosecutor—is up to such a challenge.