Prosecutor Jack Smith has used Justice Amy Coney Barrett’s words to prove that former President Donald Trump should be prosecuted for election fraud.
Barrett, who Trump nominated to the Supreme Court, surprisingly broke with the court majority in finding that some of Trump’s presidential acts could be used as evidence against him.
While releasing his dossier of evidence on Thursday in Trump’s election fraud case, the special counsel relied heavily on Barrett’s opinion in the Supreme Court’s July 1 ruling on presidential immunity.
Newsweek reached out to the Trump campaign via email for comment on Thursday.
In her opinion, Barrett said that some of Trump’s acts as president could be considered private.
Smith quoted Barrett’s opinion: “The defendant’s conduct with respect to the elector scheme is inherently private, and not subject to immunity.”
“Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection.”
While Barrett sided with the 6-3 Supreme Court majority in finding that Trump had broad immunity from prosecution, she broke with the majority in finding that Trump’s official acts could be used as evidence against him while prosecuting him for private behavior.
Smith has been forced to release the evidence to ensure compliance with the Supreme Court’s ruling on presidential immunity.
Jack Smith in Washington, D.C., on June 9, 2023. Smith is using the words of Supreme Court Justice Amy Coney Barrett to prove that Donald Trump does not have immunity from election subversion charges.
Mandel Ngan/Getty Images
The Supreme Court advised the trial judge to obtain the evidence early so that she could assess if it complied with the July 1 ruling.
By quoting Coney Barrett, Smith emphasizes that Trump can be prosecuted for private conduct.
New York University School of Law professor Stephen Gillers told Newsweek that much of Smith’s filing “concerns Trump’s behavior as a candidate, not as president.”
“The president has no role in deciding the result of the election,” Gillers said.
“The evidence concerns Trump’s behavior on January 6 or in communications with officials in select states, all to enable him to be certified as the winner or to prevent the Electoral College from declaring a winner and sending the contest to the House.”
“But those activities are personal, not official, Smith persuasively argues, because Trump was not acting in an official capacity but as a candidate. He had no official election role,” Gillers added.
Former federal prosecutor Neama Rahmani told Newsweek that Smith is focused on Trump’s private conduct.
“The prosecution still has to prove that Trump’s conduct was private to avoid dismissal based on presidential immunity. That’s why so much of the filing discusses Trump’s communications with private individuals like his private lawyers and campaign officials, which have historically been deemed not to be official acts.”
Rahmani, the president of the West Coast Trial Lawyers law firm in California, said that Smith’s filing is “also important because it helps prove Trump’s knowledge that he lost the election and his intent to overturn the results nonetheless.”
Trump is accused of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempting to obstruct an official proceeding, and conspiracy against rights in connection with an alleged pressure campaign on state officials to reverse the 2020 election results.
Trump has denied all charges against him and repeatedly said he is the victim of a political witch hunt. He has accused Smith of attempting to interfere in the 2024 presidential election by prosecuting him.
In late August, Smith filed an updated indictment of Trump, reshaping the case to comply with the Supreme Court‘s ruling granting immunity to sitting presidents when conducting certain “official” acts.
The new indictment removes all accusations leveled against Trump regarding attempts to pressure the Department of Justice to falsely declare that President Joe Biden‘s 2020 election win was the result of massive fraud after the Supreme Court ruled that was official conduct.
