• The U.S. Justice Department is proceeding with a criminal case against former President Donald Trump for his attempts to overturn the 2020 election defeat.
• The case, led by Special Counsel Jack Smith, argues that Trump was primarily acting as a candidate, not as a president, when he tried to retain power.
• The revised indictment emphasizes the role of Trump's private attorneys and campaign officials, and labels Trump's address to supporters ahead of the Capitol siege as a campaign speech.
• The case against Trump could potentially redefine the boundaries of presidential power and immunity, shaping the future of American politics and governance.

In a significant departure from its traditional stance, the U.S. Justice Department is proceeding with a criminal case against former President Donald Trump for his attempts to overturn the 2020 election defeat. This move signals a shift from the department's historically broad view of presidential authority, which has seen it defend the rights of the executive branch, including Trump, in civil lawsuits related to his conduct in office.

The case against Trump is being led by Special Counsel Jack Smith, who recently obtained a revised indictment. This indictment seeks to circumvent a U.S. Supreme Court ruling that largely grants former presidents immunity from criminal prosecution for acts performed as part of their official duties. The prosecution argues that Trump was primarily acting as a candidate, not as a president, when he tried to retain power.

Trump has pleaded not guilty to four charges accusing him of a multi-part conspiracy to obstruct the collection and certification of the election results. He maintains that this case, along with others he faces, are politically motivated attempts to prevent him from returning to power.

The Revised Indictment and Its Implications

The revised indictment emphasizes the role of Trump's private attorneys and campaign officials, removing references to administration officials. It labels Trump's address to supporters ahead of the Capitol siege as a campaign speech. It also highlights the dual roles of then-Vice President Mike Pence as Trump's running mate in 2020 and president of the U.S. Senate when he oversaw the Jan. 6 congressional certification of the election. Trump unsuccessfully pressured Pence to prevent certification of the vote.

The case has forced the Justice Department to confront questions about presidential power that extend beyond Trump's case. Legal experts suggest a potential clash between the government's need to sustain the indictment and its need to defend standard Department of Justice and executive branch positions in other cases and contexts.

The department's stance on presidential power has been historically broad. Michael Dreeben, a lawyer in Smith's office, acknowledged to the Supreme Court that the department has typically taken a very broad view of official presidential action. However, the department's pursuit of a criminal case against Trump indicates that there are limits to this view.

The Case's Potential Impact on Future Presidencies

The department's approach to Trump's case is cautious. It declined in 2021 to shield Mo Brooks, a Republican U.S. representative who had spoken at the Jan. 6 rally, from a lawsuit over the riot. It concluded Brooks was engaging in campaign activity unrelated to his formal role.

The case against Trump presents a "unique set of circumstances," according to Norm Eisen, a veteran Washington lawyer who served as special counsel in the first impeachment of Trump. He noted that no president other than Trump has attempted a similar effort to undermine election results, making it less likely that future presidents will be hampered by the prosecution.

The Supreme Court's ruling on presidential immunity is based on a longstanding prior decision that presidents cannot face civil lawsuits over conduct within the limits of their formal responsibilities. In the election subversion case, the court left it to U.S. District Judge Tanya Chutkan to decide which of Trump's actions are covered by immunity and which can proceed to trial. Prosecutors must show either that Trump's conduct was not tied to his official responsibilities or that the prosecution does not infringe on presidential authority.

The outcome of Judge Chutkan's decision is likely to be appealed back to the Supreme Court, leaving virtually no chance that a trial will take place before the Nov. 5 election, when Trump faces Democratic Vice President Kamala Harris.

The case against Trump is reminiscent of the Watergate scandal in the 1970s, where then-President Richard Nixon faced impeachment for obstruction of justice, abuse of power, and contempt of Congress. While Nixon resigned before he could be impeached, the case set a precedent for holding presidents accountable for their actions while in office. The current case against Trump could potentially redefine the boundaries of presidential power and immunity, shaping the future of American politics and governance.