[Order David Horowitz’s new book, America Betrayed, HERE.]

Special Counsel Jack Smith filed an updated indictment on August 27th in his election interference case against Donald Trump. The new court filing omits some allegations from the original indictment that could have run afoul of the Supreme Court’s presidential immunity decision. The special counsel’s redo is a desperate attempt to keep alive a case against the former president that still remains shaky at best.

Mr. Smith notified the U.S. District Court for the District of Columbia that the new indictment was filed “by a new grand jury that had not previously heard evidence in this case” and that the indictment “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions.” But the removal of certain specific allegations from the superseding indictment relating to Donald Trump’s conduct while he was the president still leaves the four original underlying charges against Donald Trump intact: (1) Conspiracy to defraud the U.S. government; (2) Conspiracy to obstruct an official proceeding; (3) Obstruction of an official proceeding; and (4) Conspiracy against rights.

The new indictment’s principal change is the removal of all allegations concerning Mr. Trump’s communications with Department of Justice officials while he was still president that related to his claims of election fraud. Special Counsel Smith had no choice in this regard. That is because the Supreme Court had ruled that such communications were within the scope of a president’s core official duties and thus fully immune from criminal prosecution.

However, Special Counsel Smith’s new indictment tries to leverage the wriggle room the Supreme Court left in its decision for criminal prosecution regarding acts that a president performs in his personal capacity, including as a political candidate. Mr. Smith used this leeway to allege that Mr. Trump was acting in his personal capacity by posting claims on his social media account and asserting in his public remarks that the 2020 presidential election was rigged. According to the indictment, Mr. Trump created “an intense national atmosphere of mistrust and anger” and eroded “public faith in the administration of the election” because of his alleged “pervasive and destabilizing lies about election fraud.”

Mr. Smith renewed other accusations against Donald Trump relating to certain acts that the Supreme Court’s immunity ruling left open for possible criminal prosecution. For example, he charged again that Mr. Trump pressured then-Vice President Mike Pence to use his constitutional role presiding over the joint session of Congress dealing with electoral vote certification to reverse the election results in Mr. Trump’s favor. But even here the Supreme Court ruling suggested that there could be a presumption of presidential immunity because “our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties.” Under this framework, Mr. Trump’s forceful and persistent communications to Mr. Pence, asking the vice president to test the extent of his lawful discretion in presiding over the certification process, may be immune from prosecution.

Special Counsel Smith also renewed his accusation that Mr. Trump had worked with his “co-conspirators” to tamper with the selection of state electors in states where Joe Biden won the popular vote. The superseding indictment asserts that Trump “had no official responsibilities related to any state’s certification of the election results” but instead had “personal interest as a candidate.” This accusation falls into a murky area of the Supreme Court’s ruling, but still may not survive scrutiny under the standards for review of presidential immunity claims established by the Supreme Court. The majority opinion suggested that “the President may speak on and discuss such matters with state officials … to encourage them to act in a manner that promotes the President’s view of the public good.”

Whether the allegations relating to former President Trump’s pressure exerted on Mike Pence and state officials to help Mr. Trump reverse the 2020 election results can get past a motion to dismiss remains to be seen. Regardless, however, there is so much in the superseding indictment that is fundamentally flawed and warrants dismissal.

The second and third charges relating to obstructing an official proceeding rest on very shaky grounds. This is because another Supreme Court decision last term narrowed the scope of the statute section that Special Counsel Smith relied upon to file those charges. That other case involved an obstruction of official proceedings charge against a January 6^th defendant relating to alleged interference with the congressional certification of the 2020 presidential election. The Supreme Court ruled that the prosecution had to prove that the defendant “impaired the availability or integrity” of documents or other records related to the official proceeding or tried to do so. There is nothing that Special Counsel Smith alleges in the superseding indictment that fits squarely within those parameters.

Moreover, it is difficult to discern at times in the superseding indictment’s description of Mr. Trump’s behavior in office where his official acts as president ended and his personal acts for his own private political purposes began.

Special Counsel Smith’s most egregious accusations involve Mr. Trump’s legitimate exercise of his First Amendment right to express his opinion on social media and in his public statements that the 2020 election results were rigged. Even Smith admitted on the second page of his 36-page superseding indictment that “As a candidate and a citizen, the Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”

Nevertheless, the bedrock of the new indictment, just like the original indictment, remains its allegations that Mr. Trump engaged in speech that “spread knowingly false claims of election fraud.” Not only is Mr. Smith making unsubstantiated assumptions as to Mr. Trump’s inner thoughts about the veracity of what he was stating publicly. More importantly, Mr. Smith is still building his case around words the former president posted and spoke in the exercise of his constitutional right of freedom of speech. The special counsel’s use of these words as evidence of criminal conduct should be barred on First Amendment grounds.

The superseding indictment characterizes Donald Trump’s speech at the “Stop the Steal” rally on January 6, 2021 as “a Campaign speech at a privately-funded, privately-organized political rally.” It charges that Mr. Trump “directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification.”

The indictment quoted excerpts from Mr. Trump’s January 6th speech out of context and deliberately distorted his intent by omitting this crucial guidance he provided to his peacefully assembled supporters: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” (Emphasis added)

Mr. Trump did use very strong language to make his point questioning the integrity of the 2020 election results. But nothing that he said at the “Stop the Steal” rally on January 6^th constituted an incitement to his supporters to commit imminent violence or to conduct an insurrection at the Capitol. It makes no difference whether Trump delivered his impassioned speech on January 6^th for personal political reasons at “a privately-funded, privately-organized rally.” It is the First Amendment, not presidential immunity, which shields Mr. Trump from any criminal liability for what he said that day or any other day.

The bottom line is that the former president was exercising his own First Amendment right to encourage his supporters to exercise their First Amendment right to peacefully assemble and petition the government at the Capitol. He was not present at the Capitol when the riot broke out and he in no way encouraged his supporters to engage in such a riot.

Former House Speaker Nancy Pelosi took responsibility upon herself right after being whisked away from the Capitol on January 6th for not having National Guard troops present in time that day at the U.S. Capitol. Only later did she try to use her January 6 Select Committee to shift the blame to Donald Trump. Now Special Counsel Jack Smith is doing the same thing.

George Washington University law professor Jonathan Turley was too kind when he said that Special Counsel Jack Smith’s new indictment against Donald Trump “stretched the law.” It is more accurate to describe the new indictment as the latest example of how Mr. Smith continues to wrongly use lawfare and pervert the justice system to persecute the Republican nominee in this year’s presidential election.