gotchanewsdaily.com 
To understand the dumb and unnecessary choices the Supreme Court put before special counsel Jack Smith in charging Donald Trump with election interference, consider how the revised Trump indictment identifies the defendant.
The original document begins by describing Trump in straightforward terms: “the forty-fifth President of the United States and a candidate for reelection in 2020.”
The new version, handed up Tuesday by a federal grand jury, is more elliptical: “The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.”
The indictment waits until the second paragraph, and then only in an aside, to relate what everyone knows: “Despite having lost, the Defendant — who was also the incumbent President — was determined to remain in power.” It refers to Trump as “a candidate and citizen” and to his Jan. 6, 2021, rally as a “privately-funded, privately-organized political rally.” It even excises a tweet about the rally, referenced in the original indictment, in which Trump stated, “We hear you (and love you) from the Oval Office.”
This is, no doubt, prudent lawyering on Smith’s part. The special counsel is bowing to the reality of the court’s misguided July 1 ruling granting Trump, and all other presidents, broad immunity from criminal prosecution for their official acts. Smith wants to stay as far away as possible from any hint that the office Trump occupied had anything to do with his efforts prevent the peaceful transition of power.
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But why? Why must Smith go to such lengths to obscure the fact that Trump, when he engaged in the alleged criminal conduct, was the sitting president? As Justice Ketanji Brown Jackson told CBS News’s Norah O’Donnell, explaining her dissent in Trump v. United States: “I was concerned about a system that appeared to provide immunity for one individual under one set of circumstances, when we have a criminal justice system that had ordinarily treated everyone the same.”
Let’s be serious: The fact that Trump occupied the highest office in the land is central to his criminality. He sought to use all the powers of that position to prevent the peaceful transfer of power; his subversion reflected a whole-of-government approach. Equally, it’s only possible to understand the perfidy of Trump’s behavior to know the full story of all the people, especially inside government, who tried to dissuade Trump from contesting the election results and urged him to seek to restore order after insurrectionists breached the Capitol on Jan. 6.
And notwithstanding the court’s ruling in Trump v. United States, nothing in the language or structure of the Constitution requires being blind to that reality or keeping it from forming part of the case against him.
The original indictment was able to provide the unexpurgated version of how Trump sought to enlist private actors and government officials to help him remain in power — how he sought to misuse the authority of the Justice Department “to conduct sham election fraud investigations” and promote fraudulent electors, and then pressured Vice President Mike Pence not to certify the election results.
The new indictment abandons the allegations relating to Trump’s misuse of the Justice Department and his effort to install Jeffrey Clark as acting attorney general. Smith had no choice but to drop that part of the charges. Out as well: any reference to all the government officials — at Justice, the intelligence community and the White House — who unequivocally told Trump he had lost.
And with respect to his browbeating Pence not to certify the election results, the superseding indictment takes pains to make clear that Trump “had no official responsibilities related the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” When it refers to Pence, it repeatedly cites his “ceremonial role” as “President of the Senate.”
This description was necessary because of the court’s wrongheaded determination that Trump is “at least presumptively immune” for conduct involving his discussions with Pence, even in that ceremonial role. But it might not do the trick. Chief Justice John G. Roberts Jr., writing for the majority, seemed skeptical of the notion that discussions between the president and vice president about his senatorial role would fall outside the realm of official conduct.
If the charges stand — and that’s a big if, one that will be litigated up the ranks of the federal judiciary — the case against Trump will have proved salvageable, if frustratingly incomplete. That will be a welcome outcome, and particularly welcome if Trump loses his bid for reelection and the prosecution is actually permitted to proceed after this undue delay.
But the fate of the immediate Trump prosecution has never been the biggest problem with the high court’s ruling in his favor. The biggest problem is the message the court sent to future presidents — whether Trump or others — about the degree to which they face criminal jeopardy for violating the law in their actions as president.
Until Trump v. United States, every president of the United States — Trump included — assumed that he was subject to criminal prosecution for official acts. They seemed to manage just fine. Roberts and the majority expressed worry about the chilling effect of such criminal liability on future presidents. I worry about the unchilling effect. Even if this new, watered-down indictment produces the conviction I believe is warranted, the danger remains clear and present.
