The Supreme Court has tied the special counsel’s hands in some ways—but there are other opportunities for him to get creative.
Jack Smith isn’t throwing in the towel. Despite the setback of the Supreme Court’s presidential immunity decision—which ruled that presidents are immune from criminal prosecution for certain “official” acts taken while in office—Smith is still trying to hold Trump accountable for his actions in the aftermath of the 2020 election.
“I imagine he would say that undermining the certification vote or offering false slates of electors impairs the integrity of documents within the meaning of 18 U.S.C. § 1512,” Fan explained. “The defendants ingot off primarily because they were just involved in obstructing the proceeding, as opposed to the documents used in the proceedings.
Smith’s new indictment features the same list of co-conspirators that are each described as Trump’s private attorneys, with the one former DOJ official removed. Although Pence is still mentioned, there is no longer mention of any conversations Trump and Pence had in the lead-up to Jan. 6—the Christmas Day conversation in which Trump tried to pressure Pence to reject electoral votes is notably missing.
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