'Pared away all official conduct': Expert says Jack Smith’s new indictment is immunity-proof

On Tuesday, August 27, special counsel Jack Smith revised his election interference indictment against former President Donald Trump, leaving in place four federal charges: attempting to obstruct an official government proceeding, conspiracy to obstruct an official government proceeding, conspiracy to defraud the United States and conspiracy to violate rights. Smith revised his indictment in response to the U.S. Supreme Court’s controversial immunity ruling in Trump v. United States.

The next morning on MSNBC’s “Way Too Early,” former federal U.S. Attorney Barbara McQuade offered legal analysis of the revised indictment — arguing that Smith’s office had been careful to make sure the revised indictment was compatible with the High Court’s ruling.

McQuade explained, “I think the Trump team will attack this and say all this conduct is somehow official and immune from criminal prosecution. But…. one of the things they do here, at any many junctures in this indictment, point out, for example, that Trump's speech at the (January 6, 2021) rally was a campaign speech that was privately funded, so making it clear this was not official conduct.”

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In Trump v. United States, the High Court ruled that U.S. presidents are immune from criminal prosecution for “official” acts but not for “unofficial” acts. This means that Smith, with this indictment, must show that the charges involve “unofficial” acts and were not performed as part of Trump’s duties as then-president.

McQuade, on “Way Too Early,” stressed that Smith made a careful distinction between Trump as president of the United States in late 2020/early 2021 and Trump as a candidate in the 2020 presidential election.

McQuade noted, “That conversation with (former Vice President) Mike Pence, in his capacity as president of the Senate discussing blocking the certification. Even the very first paragraph of the indictment now refers to Donald Trump not as the 45th president of the United States, but as a candidate for president in 2020. And so, I think that will be argued, but I think they have pared away all the official conduct now such that this should be in good shape to go forward. We'll see if the courts agree.”

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Watch the full video below or at this link.

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