U.S. prosecutors pushing ahead with their case against Donald Trump for his efforts to overturn his 2020 election defeat are also being careful to avoid staking out positions that could limit the power of President Joe Biden or his successors.
The U.S. Justice Department historically has carefully protected the rights of the executive and indeed, three times during Biden's Democratic administration defended his Republican predecessor in civil lawsuits related to his conduct in office.
But as it pursues a criminal case against Trump, the department is signaling there are limits to its normally broad view of the presidential role.
A revised indictment obtained last week by Special Counsel Jack Smith, who is leading the prosecution, attempts to overcome a U.S. Supreme Court ruling that former presidents are largely immune from criminal prosecution for acts that are part of their official duties by arguing that Trump was primarily acting as a candidate, rather than a president, when he tried to hold onto power.
Trump has previously pleaded not guilty to four charges accusing him of a multi-part conspiracy to block the collection and certification of the election results. He argues this case and others he faces are politically-motivated attempts to prevent him from returning to power.
The July ruling by the 6-3 conservative majority court that includes three Trump appointees forces the Justice Department to confront questions about presidential power that have implications beyond Trump’s case, according to legal experts.
"There's potentially a clash between, on the one hand, the things the government might need to say in order to sustain the indictment and, on the other hand, what it needs to say in other cases and contexts to defend some pretty standard Department of Justice and executive branch positions,” said Peter Keisler, the former head of the Justice Department’s civil division, which defends presidential actions against legal challenges.
Michael Dreeben, a lawyer in Smith's office, acknowledged to the Supreme Court in April that the department has typically taken a "very broad view" of "official presidential action."
A Justice Department spokesperson declined to comment.
DEFENDED TRUMP
During the Biden administration, the department defended Trump in lawsuits over the firing of FBI officials who exchanged text messages critical of him and the violent clearing of protesters outside the White House in 2020.
The department initially said it would defend Trump in a defamation case brought by writer E. Jean Carroll, finding Trump acted in his official role when he disparaged Carroll while denying Carroll's allegation that he sexually assaulted her.
It later reversed course. Two juries went on to order Trump to pay Carroll more than $88 million.
Even as the department investigated Trump, it tread cautiously last year when it was asked to weigh in on Trump's claim of civil immunity from lawsuits over his role in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters.
The Supreme Court largely based its standard for criminal immunity off 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.
Whatever Chutkan decides 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 revised indictment emphasized the role of Trump's private attorneys and campaign officials, removing references to administration officials. It called Trump’s address to supporters ahead of the Capitol siege a campaign speech.
It highlighted the alternate 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 department also 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.
Norm Eisen, a veteran Washington lawyer who served as special counsel in the first impeachment of Trump, said the Trump case presents a “unique set of circumstances,” making it less likely that future presidents will be hampered by the prosecution. No president other than Trump has attempted a similar effort to undermine election results, he said.
“The conduct here is so rare in American history,” Eisen said.
